SUNDARA REDDIAR Vs. SUBBIAH KOUNDAN

JUDGEMENT

(1.) WHEN the plaintiff instituted O.S. No. 412 of 08 he had not discharged Subba Reddi s mortgage, He had then a valid and enforceable mortgage only to the extent of the consideration paid by him for his mortgage bond. WHEN he subsequently paid off Subba Reddi s mortgage he became entitled under 74 of the Transfer of Property Act to the rights of Subba Reddi under his mortgage. His cause of action to enforce that right was distinct from his right on his mortgage bond. We agree with the learned District Judge in holding that the present suit is not barred by Section 11 or Order 2 Rules 1 and 2 of the Civil Procedure Code. We also agree in holding that the plaintiff s proper remedy was not to proceed in execution on the mortgage decree in favour of Subba Reddi but to institute a fresh suit on the right acquired by him by paying off Subba Reddi. See Gopi Narain Khanvi v. Bansidhar (1905) I.L.R. 27 A. 325. We fail to see how the plaintiff could be estopped from ,doing so either against the 1st defendant or against the 5th Defendant. The latter s purchase was subject to Subba Reddi s mortgage and the plaintiff claims nothing more than to enforce that mortgage. The 1st Defendant could sell only subject to that mortgage and it is difficult to see how he could reasonably suppose that the plaintiff waived his right to the benefit of the mortgage which is paid off. It may be that the first defendant sustained some damage by the plaintiff s failure to preform his covenant under his own mortgage deed to pay off Subba Reddi s mortgage. But he did not claim any damages in the suit for the plaintiff s breach of covenant. We set aside the order of remand and restore the first court s decree with costs here and in the Lower Appellate Court.

(2.) THE memo of objections is dismissed with costs.