A RAGHUPATHI AIYAR Vs. KRISHNAMACHARIAR

JUDGEMENT

(1.) The petitioner was the defendant in a -suit on a mortgage and he contended that he was entitled to let in evidence that the mortgage was a renewal of a previous promissory note debt which had ripened into a decree, so as to attract, the operation of Section 8 of Madras Act IV of 1938. The Court below held that he was not entitled to adduce such evidence and it is against that decision tne present revision petition is filed.

(2.) The suit mortgage was in favour of the two sons of Srinivasammal and one of the items of consideration for the mortgage was the discharge of a decree in a suit on a promissory note. The payee under the promissory note and the decree-holder in the promissory note suit was Srinivasammal, the mother of the two mortgagees. The question therefore is whether the decree based on the mortgage deed can be scaled -down on the basis that it is in part a renewal of this promissory note debt. The contention was that Srinivasammal, the payee under the promissory note, was really a benamidar for her sons. In our opinion, it is not open to the judgment-debtor to raise such a contention for the purpose of Section 8 of Act IV of 1938. Unless the debt of which the suit debt is alleged to be a renewal is in favour of the same creditor, the explanation to Section 8 has no application. We have held in our decision in Varadarajam Pillai V/s. Krishnamurthi Pillai (1940) 2 M.L.J. 664, that the creditor in respect of a promissory note debt is and can only be the payee and that the creditor in respect of a decree debt can only be the decree-holder or other persons specifically empowered to execute the decree; that is to say, whether we look at the promissory note itself or at the decree resulting therefrom, the creditor must necessarily be Srinivasammal and nother sons even though the sons may have a beneficial interest in the debt.

(3.) It follows therefore that there can be no question of the mortgage debt being a renewal for the purpose of the Act of the previous promissory note debt and the decision of the lower Court is right. The revision petition is therefore dismissed with costs.