VALAKONDA VEERAIAH Vs. STATE

JUDGEMENT

(1.) Defendants 3 and 4 inO. S. No. 24 of 1960 on the file of the learned Subordinate Judge, Khammam filed an appeal against the decree and Judgment in that suit. The two appellants paid a Court-fee of Rs. 10. The office raised an objection that ad valorem Court-fee, which comes to such more than Rs.10, has to be paid. Thereupon the matter is posted before me. The relevant facts are as follows : O.S. No. 24 of 1960 was filed by the plaintiff whose father had obtained a mortgage (Exhibit A-1), dated 30th October, 1948 from defendants 1 and 2 who were the executants. The plaintiff sought recovery of the mortgage amount by sale of the lands shown in Schedule ' A' to the plaint which constituted the hypotheca in Exhibit A-l and consisted of five items. The plaintiff originally imp leaded four defendants. Defendants 3 and 4 were the heirs of one V. Ramayya, who was the father of D-3 and the husband of D-4, and in whose favour the defendants 1 and 2 had executed another mortgage (Exhibit B-1) on 30th October, 1948. Because of specific recitals, Exhibit-A-1 was a prior mortgage with reference to Exhibit B-1 and this was beyond doubt or dispute. Therefore, defendants 3 and 4 were impleaded as puisne mortgagees. Another person got himself impleaded as the 5th defendant making a claim that he had rights of holding mortgages earlier than Exhibit A-1 and Exhibit B-1. The father of D-5 had obtained mortgages as follows :- (1) Exhibit B-5, dated 10th November, 1947, regarding item 3 of ' A ' Schedule Rs. 20,000 (2) Exhibit B-6, dated 2nd December, 1947 regarding 1/4 of item 1 and 2 of A ' Schedule 10,000 (3) Exhibit B-7, dated 6th December, 1947 regarding another 1/4th of items 1 and 2 of ' A ' Schedule. 10,000

(2.) The father of D-5 subsequently obtained a sale deed (Exhibit B-8), dated 18th October, 1949 from the mortgagors (defendants 1 and 2) regarding half of items 1 and 2 giving up his mortgage right under Exhibits B-6 and B-7. The 5th defendant claimed right to payment on the mortgages (Exhibits B-6, and B-7) as earlier than Exhibit A-1 and Exhibit B-1. There were other defendants (D-6, D-7 and D-8) also in t he suit but we were not concerned with them in these proceedings. After a full trial, the learned Subordinate Judge granted a decree in which the relevant portion runs as follows:-

(3.) Defendants 3 and 4 felt aggrieved with the portion of the decree which consists of the last portion in para. 6 which I have underlined in italics above and the whole of para. 7, It is against those portions of the decree that they (D-3 and D-4) filed the present appeal. In the appeal memo, the relevant grounds run as follows :