RAO SAHEB KOTLAA SANYASAYYA NAIDU Vs. PENUMATCHA VISWESWARA KUMARA APPALA SUNDERA RAMARAJU AND OTHERS

JUDGEMENT

(1.) This appeal is directed against-the judgment and order of the subordinate Judge, Amalapuram, in I.A. No.1004 of 1950 in O.S. No.8 of 1944 on the file of the said court, allowing the application and declaring that the debt in question had been completely discharged.

(2.) The appellant had taken a mortgage from the respondents on 20-2-1927, of the respondents properties for a consideration of Rs. 35,000/- A number of payments had apparently been made towards the mortgage debt, but not specifically earmarked by the mortgagors as payments either towards principal or towards interest as such. The suit was brought for a sum of Rs. 26,000/- after giving credit to the payments according to the wish of the plaintiff. The trial court dismissed the suit on the ground that applying the provisions of the Madras Agriculturists Relief Act (IV of 1938), herein, after referred to as the Act, no amount is due and payable under the mortgage, and that the entire amount had been paid off. Against this decision, an appeal was taken to the High Court of Judicature, Madras in A.S. 213/45, wherein it was held that the principal amount of Rs. 5,000/- was outstanding, and accordingly, decreed the suit for that amount together with interest at 6 1/2 per cent, per annum from 1-10-1937. Subsequently in pursuance of the decree of the High Court, the plaintiff-appellant filed I.A. 561/47 in the court below for passing a final decree. At that stage, I.A. 1004/50 was filed by the 1st defendant in the suit, and his sons, defendants 2 and 3, for scaling down the debt, applying the provisions of the Act, contending that as the Act has been amended by Act XXIII of 1948 and that Sections 8 and 19 thereof which have been amended by the said Amending Act conferred additional benefits on the defendants; and prayed that the benefits of these provisions should be given to them. This I.A-1004/50 was dismissed on the ground that the High Court's decision in A.S. 213/45 operated as res judicata and the trial court accordingly, passed the final decree in the matter. Against this order, the defendants preferred two appeals to the Madras High Court, A.S.172/52 against the judgment and final decree and C.M.A. 208/52 against the judgment and order of the court refusing the prayer in I.A. 1004/50. Both the appeals were heard together by this court which held that the judgment in A.S. 213/45 did not operate as res judicata and therefore the matter should be enquired into, and accordingly remanded I- A-1004/50 to the court below, to consider the scaling down of the decree, applying the amended Sees.8 and 19 of the Act. Thereupon, the lower court allowed the Interlocutory Application in question and held that the entire decree debt has been satisfied and entered up satisfaction of the decree. It was therein held that the three payments evidenced by Exs. P-15, D-1 and D-2 in the case must be regarded as payments to be credited to the principal of the mortgage, as the debtor has stated in writing that such payments shall be in reduction of interest, and consequently, the learned Subordinate Judge invited memos of calculation from either side and declared that the three payments in question exceeded the principal amount of the outstanding debt, and therefore, held that nothing was due and outstanding in respect of that debt. Hence the present appeal.

(3.) Two points have been urged in this appeal by Mr. Ramachandra Reddy, the learned counsel