DUDDU ELLAMMA Vs. N SESHADRI

JUDGEMENT

(1.) This is a petition by the 1st defendant to revise the order of the District Munsif, Tirupati allowing an application made by the plaintiffs in O.S. No. 396 of 1947 to dismiss their suit as not pressed.

(2.) The plaintiffs brought the suit for sale in enforcement of a mortgage dated 16-3-1935 executed by the 1st defendants husband. The lower Court passed a preliminary decree for sale. But, on appeal by the 1st defendant, that decree Was set aside and a preliminary decree for taking of accounts of the profits alleged to have been received by the plaintiffs On the suit properties since the date of the mortgage up to 30-6-1947 was passed, on the ground that the plaintiffs had been in possession of the hypothecate and sale could be ordered only if the mortgage debt has not been liquidated from the profits received. The appellate court remanded the suit to the lower court for the taking of accounts. Thereafter the lower court appointed a Commissioner but before he started his work the plaintiffs applied for dismissing the suit as not pressed alleging that the same properties had been sold in court auction in another mortgage suit (O.S. No. 81/1947, Sub Court, Chittoor) and that any decree obtained by them would be anfractuous. The application was opposed by the 1st defendant. Her contention was based on the fact that the appellate court had observed in PARA 12 of the judgment that if on the taking of accounts a surplus was left due to her, a decree could be passed in her favour. She urged that in view of this observation, the plaintiffs could not be allowed to defeat her rights by not pressing the suit.

(3.) The learned counsel for the petitioner urges that the position in this suit is similar to that in a suit for accounts where a preliminary decree for the taking of accounts has been passed and either party is entitled to a decree for the amount found due on the taking of the accounts. He relies on Annu Avathanigal v. Soma Sundara Avathanigal ILR 54 Mad 654 at p. 666: (AIR 1931 Mad 185 (2) at p. 190) in which Anantakrishna Ayyar, J., observed: "It is therefore clear that in a suit for account properly so-called the defendant has to render ac count in the technical sense, and pay the plaintiff the amount that might be found due to him; it is also clear that in such a suit the defendant would be entitled to a decree in his favour for any amount that might be found due to him, as the result of the taking of the accounts". He also relies on the observation of the Division Bench in Ramalinga Chetty v. Raghunatha Rau, (ILR 20 Mad 418 at p 420) as follows:- "If it were true that the suit was a suit for an account in the proper sense of that term, then it would follow, according to the decision in Hurrinath Rai v. Krishna Kumar Bakshi ILR 14 Cal 147, which decision illustrates the English practice, that the first defendant would be entitled to have an account taken with a view to obtain a decree for the sum that might be found due to him." But this decision itself lays down that the question whether a suit is one for accounts should be determined from the actual nature of the plaint. The plaint here merely sought to enforce the mortgage by sale. A mortgagor can as a rule call upon the mortgagee to render an account only when if seeks redemption except when such redemption has become impossible (see the Law of Mortgage in India by Ghose, 1922 edition, vol. I at page 593). The 1st defendant being only a mortgagor is not entitled to an account from the plaintiffs in the absence of a suit for redemption by her. 1 am unable to see why her rights should be enlarged merely because the mortgagee has filed a suit for sale. The analogy of a suit for account properly so called has no application.