MANNE VENKATANARAYANA Vs. TIVARI YAGNA PRASAD DIED

JUDGEMENT

(1.) This appeal arises out of the judgment of our learned brother Krishnarao, J., confirming in appeal with some modifications the decree for redemption and accounts passed by the Subordinate Judge, Narsapur in O. S. No. 13 of 1960 on his file.

(2.) The question for determination in this appeal, i.e., whether the provisions of Section 13-A of the Andhra Pradesh Agriculturists Relief Act 4 of 1938 (hereinafter referred to as the Act ), apply to one of the mortgages executed by the plaintiffs in favour of the defendant, arises under the following circumstances: The plaintiffs, of whom the 1st plaintiff is the grandfather of plaintiffs 2 and 3 had jointly executed a mortgage deed Ex. B-1 in favour of the defendant for a sum of Rs. 25,000 carrying interest at 0-9-0 per cent per mensem on 25-8-1947. They had also executed another mortgage deed Ex. B-4 in favour of the same defendant for Rs. 4,000 carrying interest at Re. 0-12-6 per cent per mensem on 13-3-1948. They made two payments Rs. 3,000 on 17-11-47 and Rs. 12,919-14-0 on 28-8-49 towards the debt due under Ex. B-1. Thereafter on 20-10-1956, they deposited a sum of Rs. 22,742 in the Subordinate Judges Court, Narsapur and filed O. P. 32/56 under Section 83 of the Transfer of Property Act, praying for an account from the defendant as to balance due. During the pendency of the petition the amount deposited was withdrawn by the defendant without prejudice to their contentions and later the petition itself was dismissed as being not maintainable. The plaintiffs thereupon filed this suit (O. S. No. 13/60) for redemption of the mortgages and for directing an account of the amount due to him ,contending that they are agriculturists and as such entitled to the benefit of the provisions of Section 13 of Act 4 of 1938. The defendant resisted the suit contending that the first plaintiff has been paying income-tax and profession-tax and therefore, the plaintiffs are not entitled to the benefits of provisions of Act 4 of 1938 and that with the express consent of the 1st plaintiff, he was appropriated the payments made, towards the debts due, with the result that Ex. B-1 stands discharged by appropriation of Rs. 19,307-4-0 and the balance of Rs. 3,381-12-0 has been appropriated towards the mortgage bond Ex. B-4 and the balance is still due. The trial Court found that the defendant was able to establish that the plaintiffs had paid profession-tax on a half-yearly income of more than Rs. 600 in all the four half-years ending on the 31st March immediately preceding Ex. B-1, disentitling them to the relief under Section 13 of Act in respect of that debt, as they attract proviso B to section 13 of the Act, will not be agriculturists to claim any benefit that he had not succeeded in establishing that the plaintiffs were also paying profession-tax for the four half-years ending on 31st March immediately prior to the execution of Ex .B-4, that therefore, they will be entitled to the relief under S. 13 of the Act with regard to the debt under Ex. B-4. He further found that though the plaintiffs will not be entitled to the benefit of the provisions of Section 13 of the Act with regard to the debt under Ex. B-1, they will be entitled to the relief under Section 13-A of the Act and as the rate of interest applicable in both the cases is 5-1/2% per annum, as per the notification issued under the proviso to Sec. 13, he held that on scaling down the money deposited by them in O. P. No. 32/56 was in excess of the amount due under the two mortgages and on this ground passed a preliminary decree declaring that both Exs. B-1 and B-4 were redeemed and directing the defendant to render an account calculating interest at 5-1/2 per cent per annum, so that the amount due could be determined in the final decree proceedings. The defendant in appeal contended that the plaintiffs are not entitled to the relief under Section 13-A of the Act and this contention was negatived by our learned brother Krishnarao, J., and he further held that there was no reason for the lower Court directing the defendant to render an account as the payments made are not in dispute and directed the lower Court itself to determine what amount is due and pass a preliminary decree for redemption and if it is found that the amount paid is in excess of the amount due, to pass a decree for refund. Hence this appeal.

(3.) The dispute in this appeal is whether the plaintiffs are entitled to claim the benefit of Section 13-A in the calculation of interest due under the mortgage deed Ex. B-1 dated 25-8-1947 which is after the commencement of the Act.