MERIA RAMANNA Vs. CHANDRU BUTCHAMMA

JUDGEMENT

(1.) This appeal is directed against the judgment of the Subordinate Judge, Rajahmundry, granting a decree for Rs. 78,333-4-0. The plaintiff who is also dissatisfied with the decision has filed a Memo, of Cross-objections claiming Rs. 1,00,000. The facts so far material for this inquiry may be briefly stated.

(2.) One Nallapuraju Atchutaramaraju for himself and as guardian of his brother's son Balabhadra Raju created a mortgage for Rs. 14,000 over certain properties in favour of one Merla Agastayya under Exhibit A-36, dated I4th February, 1911. On, 10th October, 1922, a portion of the hypotheca and some other properties not included in Exhibit A-36 were mortgaged by the said Atchutaramaraju " and his two sons, Venkatapathiraju and Venkata Surya Balabhadraraju, the sons being minors and represented by their father to: one Chundru Butchamma for a sum of Rs. 22,000. The first mortgage (Exhibit A-36) was assigned on 20th January, 1924, to the defendant under Exhibit A-37- The defendant took an additional bond on 13th March, 1925, in respect of the properties covered by the first mortgage. He filed O.S. No. 25 of 1927, Sub-Court, Kakinada, on the foot of Exhibits A-36 and A-37 impleading not only the mortgagors but the present plaintiff who was in the position of a puisne mortgagee in respect of items comprised in Exhibit A-36. A preliminary decree was passed on 31st January, 1931, which was followed by a final decree on 6th October, 1932. The matter was taken in appeal in A.S. No. 312 of 1931 to the High Court of Madras, In the appellate judgment, the priority of the plaintiff was declared over Ac. 271-83 cents out of Ac. 543-65 cents which formed the subject-matter of the first mortgage. In pursuance of the decree, the defendant brought the properties subject to his mortgage to sale and himself purchased them. A sale certificate in regard to them, was issued to him on the 26th of June, 1936. He obtained delivery of the properties purchased some time in 1938. There were some properties left in the possession of the mortgagor after the Court sale. As a result of the purchase, the right of equity of redemption in respect of several items of property embraced by the suit mortgage vested in the defendant. Out of the properties left to him, the mortgagor sold an extent of Ac. 6-61 cents lying in Kalavacherla village, East Godavari District, and another plot of Ac. 10-15 cents situated in Dulpatutu for a sum of Rs. 1,500. In respect of these properties, the plaintiff executed a release deed, Exhibit A-15 receiving a sum of Rs. 100 in favour of the vendors and the vendees on 25th March, 1948. To the same vendee were conveyed Ac. 45-54 cents consisting of three bits, each measuring Ac. 30-38 cents, Ac. 3-50 cents and Ac. 11-66 cents, situated in different villages by the mortgagors. The plaintiff released his mortgage rights over those items for a consideration of Rs. 100, evidence by Exhibit A- 15 (a). All the documents cited above were registered before 3 P.M. on 30th March, 1948. On the same date, the suit giving rise to this appeal was instituted for the recovery of Rs. 2,00,000 on the mortgage, Exhibit A-3- The plaintiff gave up a sum of Rs. Rs. 1,38,048 thus confining his relief to Rs. 2,00,000. The plaint was presented between 4 and 5 P.M. on that date.

(3.) The suit was resisted on several defences: that it was barred by limitation, that the defendant was entitled to the benefits of the Madras Agriculturists' Relief Act (hereinafter called the Act); and that the defendant should be relieved against the penalty which consisted in the agreement to pay compound interest in default of the payment of the instalments provided for in the mortgage.