MANCHERLA NARASIMHAM Vs. MAHABUBUNNISSA BEGUM

JUDGEMENT

(1.) The above revision petition has been referred to a bench at the instance of our learned brother Satyanarayana Raju, J., who felt that there was an apparent conflict between the views represented by the decision in Sreenivasa Rao v. Adbul Rahim Saheb, 1956-2 Mad LJ 189 : (AIR 1956 Mad 618) and Nainumal v. Subba Kao, 1957-2 Andh WR 53 : ( (S) AIR 1957 Andh Pra 546) (FB).

(2.) The facts relevant for the disposal of this revision petition may be stated briefly: The plaintiff borrowed a sum of Rs. 2,500.00 on 24-12-1951, from the defendant, Kancherla Narasimbam, and executed a mortgage to secure repayment of the said sum stipulating to pay an interest of 12 per cent per annum. On 26-12-1951 the plaintiff borrowed from the defendant a sum at Rs. 1,500/,-and executed a promissory note in his favour agreeing to pay 12 per cent interest per annum. On 12-2-1954, the plaintiff sent a sum of Rs. 1,100.00 by bank draft towards the promissory note, which was credited to the principal due-thereunder. On 23-6-1954, the plaintiff sent another sum of Rs. 1,900.00 towards the debt due under the mortgage. On 16-8-1954 she sent a further sum of Rs. 1,400.00 by a bank draft. These payments are not in dispute. There is, however, a controversy as to the appropriation of the sum of Rs. 1,400.00 sent by bank draft, which will be referred to later.

(3.) The defendant instituted O. S. No. 224 of 1955, on the file of the District Munsifs Court, Bhimavaram, for the recovery of the money due under the mortgage executed by the plaintiff on 24-12-1951. The present plaintiff contested that suit inter alia on the ground that out of Rs 1,400/- sent by bank draft the defendant should have credited only Rs. 568-12-9 towards the interest at the rate of 5 1/2 per cent per annum as permitted under Act IV of 1938 instead of Rs. 859-11-0 which he actually credited and that the balance between the latter and the former should! have been credited towards the mortgage. In that suit, however, this question was not gone into and the plaintiff was given liberty to file a suit for the recovery of the dues of Rs. 273-14-6. The mortgage suit ended in a decree and we are not concerned with it in the present proceedings.