CHITOORY VENKATARAJU Vs. M VENKATARAJAMMA

JUDGEMENT

(1.) This is a Letters Patent Appeal against the judgment of our learned brother Sanjivarow Nayudu, J. under Clause. 15 of the Letters Patent in A. A. O. No. 179 of 1956. The facts leading upto the appeal are shortly as fallows :

(2.) The appellant in this Letters Patent appeal is the holder of two promissory notes in his favour dated 7-12-33 and 8-2-34 for Rs. 2700.00 and 2000/- respectively from the first judgment-debtor Mutha Saryarayudu. The interest was stipulated at Rs. 1-4-6% p. m. compound with quarterly rests and Rs. 1-6-6% p. m. compound with quarterly rests, respectively. On 25-7-39, the first judgment-debtor for himself and as guardian of his minor sons executed an agreement (Ex. A-2) in favour of the appellant, whereunder he undertook to create a mortgage over certain properties for the amount due under the two promissory notes. On 27-542, the appellant filed the suit O. S. No. 37 of 1942 on the file of the Sub Court, Kakinada for the recovery of a sum of Rs. 15,188-8-0 against the first judgment-debtor and his sons with a prayer that the amount be made recoverable by the sale of the property agreed to be mortgaged under the agreement dated 25-7-1939. A decree for specific performance of the agreement was also prayed for in the alternative, and then for a decree for sale. This suit was compromised between the parties and a compromise decree was passed on 30-3-1944, the Court having accorded its sanction on behalf of the minor sons of the first judgment-debtor (the compromise having been certified by the counsel for the defendants). Under the compromise, the amount payable by the first judgment-debtor and his sons by that date was fixed at Rs. 11,599-9-0 made up of (a) Rs. 4000.00 being the principal amount borrowed under the promissory notes, (b) Rs. 6071-12-0 being the interest thereon, calculated at 0-12-6% per month annual compound and (c) Rs. 1527-13-0 being the public costs Incurred by the appellant. The clause in the compromise decree Which has given rise to the controversy is as follows:

(3.) The appellant then filed E. P. No. 332 of 1953 on 20-7-1953 ciliming interest at the rate stipulated in the compromise decree. A counter was tiled thereto on 24-9-53 raising the only plea that they were to get credit for a sum of Rs. 2,000.00 paid to the decree-holders brother on 26-9-1952 in part satisfaction of the decree and praying for six months time to pay up the balance. The decree-holder admitted the payment of Rs. 2000.00 and part satisfaction was accordingly entered on 6-10-53, and-the E. P. was posted for the checking of sale papers to 8-10-53. Thereafter sale notices were taken to the judgment-debtors and eventually the charged property was ordered to be sold on 10-3-54. On that day, the appelant-decree-holder filed another application to permit him to bid and set off and that was allowed with the consent of the judgment-debtors. The judgment-debtors paid Rs. 1000.00 to-the decree-holder and got the sale adjourned to 144-1954. On that date they made a further payment of Rs. 4500.00 and got the sale adjourned to 28-7-54. Again on 28-7-54 a further sum of Rs. 1000.00 was paid to the decree-holder and the sale was got adjourned to 8-9-54 on which date they paid a further sum of Rs. 500.00 and sot the sale adjourned to 3-11-54. Again on that date the judgment-debtors paid Rs. 1000.00 to the decree-holder and had the sale adjourned to 8-12-54. In between these two dates, the first judgment-debtor filed an application E. A. 141? of 1954 for determining the amount due under the decree-to Rs. 12,143-5-0, and the same having been fully paid; full satisfaction should be entered, or that the amount due should be determined and if there is any excess payment to be made, pass such other orders as the Court deemed fit in the circumstances of the case.