AYIPUZHA PARVATHI AMMA Vs. SUBRAMANIAN PATTAR

JUDGEMENT

(1.) This is a petition to revise an order of the Subordinate Judge of Tellicherry dismissing ftie petitioner's application under Section 23 of the Madras Agriculturists Relief Act to set aside an auction sale of certain immovable properties of which she claimed to be the owner.

(2.) The facts of the case may be briefly stated. The respondent obtained a mortgage decree for Rs. 3,083 against the petitioner and others on a mortgage executed in his favour on 6 August, 1931, by one Krishnan Nambi. The mortgage comprised eight items of immovable properties of which he sold items 5 to 8 and part of item 4 under Ex. A and items 1 and 2 under Ex. B, to one Vishnu Nambudri on 9 August, 1931. He also made a gift of item 3 to his daughter, the petitioner herein, on the same date. The petitioner sued Vishnu Nambudri in O.S. No. 464 of 1934 on the file of the District Munsif's Court of Taliparamba for recovery of possession of items 1, 2 and 4 to 8, alleging that these properties were sold to him by her father as a benamidar for herself. The suit was decreed by the trial Court, but on appeal it was held that though Vishnu Nambudri took the sale as a benamidar, the petitioner failed to establish that he was a benamidar for her and the suit was accordingly dismissed. With a view to remove the cloud on the petitioner's title arising. from this decision, Krishnan Nambi executed on 24th March, 1937, a release deed purporting to release all his rights in items 1, 2 and 4 to 8 in favour of the petitioner. The respondent instituted O.S. No. 2 of 1936 in the lower Court to enforce his mortgage of 1931 impleading Krishnan Nambi the mortgagor as the first defendant, the petitioner as the second defendant and certain others claiming interest in some of the mortgaged items, and obtained a preliminary decree on 22nd December, 1936 and a final decree for sale on 17th August, 1937, for Rs. 3,083 as stated already. In execution of this decree, the mortgaged properties were sold in one lot on 10 March, 1938. With a view to have the decree scaled down under the Madras Agriculturists Relief Act which came into force soon after, the petitioner applied to the Court below on 9 April, 1938, for setting aside the auction sale. The learned Subordinate Judge in dismissing the application held (1) that having regard to the terms of the preliminary and final decrees in the suit, the petitioner was not a judgment-debtor and therefore was not entitled to apply under Section 23 of the Act; (2) that the petitioner failed to prove that she had any interest in the hypotheca except item 3 which she obtained under the gift deed of her father; and (3) that the petitioner was excluded from the benefits of the Act by reasoh of Section 10(2)(ii) so far as items 1 and 2 comprised in the sale deed Ex. B were concerned as the purchase money due in respect of that sale which the vendee was directed to pay to the respondent in discharge of the mortgage remained unpaid and there was a charge for that liability under Section 55(4)(b) of the Transfer of Property Act. All these conclusions were canvassed before us in this revision petition.

(3.) On the first point, we are clearly of opinion that the petitioner is entitled to apply under Section 23 of the Act. According to the decision in Perianna v. Sellappa , the liability of the petitioner as a subsequent alienee of part of the hypotheca to discharge the mortgage is a debt liable to be scaled down under the provisions of the Act. The respondent's learned Counsel however urged that the petitioner was not a judgment-debtor within the meaning of Section 23 as neither the preliminary nor the final decree contained any direction that the second defendant should pay the amount due to the respondent. It is true that para. 2(1) of the preliminary decree directs only the first defendant the mortgagor to pay into Court on or before the date fixed the sum decreed to the respondent, but para. 4, after providing that the money realised by sale of the hypotheca less the expenses of the sale, should be applied in payment of the amount decreed to the respondent directs that the balance, if any, shall be paid to the first defendant or other persons entitled to receive the same , and para. 5 provides that the parties shall have liberty to apply to the Court from time to time as they may have occasion and on such application or otherwise the Court may give such directions as it thinks fit. Again, the final decree recites that the payment directed by the preliminary decree was not made by the first defendant or any person on his behalf or any other person entitled to redeem the mortgage, and contains a provision in para. 2 that the balance, if any, of the sale proceeds after the satisfaction of the plaintiff's debt be paid to the first defendant or other persons entitled to receive the same. It cannot for a moment be disputed that the petitioner was a person entitled to redeem the respondent's mortgage under Section 91 of the Transfer of Property Act, and it is obvious that she was impleaded by the respondent in the mortgage suit with a view to bind her interest in the hypotheca by the decree. It was said that the respondent did not admit her right in the hypotheca but impleaded her and other alienees in the plaint as setting up "pretensions to certain rights in the property subsequent to the mortgage." The mortgagee was not interested in admitting or denying the rights of subsequent alienees in the mortgaged properties as such rights, whatever they might be, were all subject to the mortgage and, indeed, any dispute regarding such rights would be outside the scope of the mortgage suit. As a matter of fact, none of the defendants raised any dispute regarding the petitioner's right to the third item under the gift of her father. It was because of the interest she claimed in the hypotheca that she also raised a contest in the suit as to the amount payable to the respondent. In these circumstances, it is clear that her interest in the hypotheca, whatever its extent, was bound, by the decree and she was a person entitled to redeem the respondent's mortgage or, if there was no redemption, to receive the balance, if any, of the sale proceeds after payment of the decree amount according to the extent of her interest in the hypbtheea. We are therefore of opinion that the petitioner is a judgment-debtor as defined in Section 2(10) of the Civil P. C., assuming that the term, not having been otherwise defined, is to be understood in no wider sense in the Madras Act IV of 1938.