SINGARAM CHETTIAR Vs. KALIYANA SUNDARAM PILLAY

JUDGEMENT

(1.) In my opinion, the order of the Subordinate Judge accepting the security tendered by the respondent is right. He has accepted the Rs. 10,000, deposited by the respondent in Court under a decree passed in a suit for redemption, as security for Rs. 3,000 for any mesne profits that might be recovered from him by the appellants. The money which is in deposit in Court under the decree is the amount which would be payable to the defendants, who are the mortgagees, as money due under the mortgage. The defendants respondents, who have appealed against the decree for redemption, will not be entitled to this money if they succeed in their appeal, and the decree for redemption is set aside, in which case the money will be available as security. On the other hand, if the defendants appeal fails and the decree for redemption is confirmed, the defendants will be entitled only to the Rs. 10,000 and there would be no claim for mesne profits at all. The decree directs that the money should be deposited in Court. It does not say to the credit of the defendants; and I am not, therefore, prepared to hold that the property in the money has passed to the defendants, though they may undoubtedly apply for an order that the money may be paid to them. They have made no such application but have appealed against the decree by virtue of which alone they would be entitled to apply that the money may be paid to them. The money remains to the credit of the suit and I see no reason why such money cannot be given as security. Even if defendants draw the amount, they will be liable to refund the amount in case they succeed in their appeal.

(2.) In these circumstances, it is difficult to see why the money should not be a valid security. I would, therefore, dismiss this appeal. Sundara Iyer, J.

(3.) I regret I am unable to agree in the conclusion arrived at by my learned brother. The plaintiff obtained a decree for redemption against the defendants. The mortgage-money payable by him according to the decree was Rs. 10,000. The, defendants have filed an appeal against that decree. In the meanwhile, the plaintiff wants to execute his decree for redemption and to take possession of the mortgage property. At the defendant s request, this Court passed an order that the plaintiff should not execute the decree and take possession of the property unless he gives security to the satisfaction of the lower Court for Rs. 3,000 for the mesne profits that would be payable by the plaintiff to the defendants in case the decree of the lower Court should be reversed on appeal The plaintiff now wants the Court to accept as security for Rs. 3,000 the sum of Rs. 10,000 which he has deposited in Court on account of the mortgage-money due under the decree. The lower Court has held that he is entitled to have that amount accepted as security. The question for decision is, whether the sum of Rs. 10,000 in Court can legally be accepted as security for the sum of Rs. 3,000 that might become payable by the plaintiff as mesne profits. In my opinion, it cannot be. According to the decree, the plaintiff is entitled to recover possession only on paying a sum of Rs. 10,000 into Court. In addition to that liability, the order of this Court has also made the plaintiff s right to take possession conditional on his further giving security for Rs. 3,000. Now, can he give the Rs. 10,000 which he has deposited as security for Rs. 3,000?