VEERAPPA CHETTY Vs. ARUNACHELLAM CHETTY

JUDGEMENT

(1.) This is a suit to enforce by an order for sale a mortgage of certain property in Upper Burma, made by the respondent in favour of the assignor of the original plaintiff.

(2.) The case comes before their Lordships on an appeal from an order of the Chief Court of Lower Burma dismissing the suit, and discharging a decree for sale of the mortgaged property--which had been made by the trial Judge in the District Court of Myauugmya. The question is whether there was adduced by the plaintiff at the trial evidence sufficient to justify an order for sale of the mortgaged property.

(3.) Such suits as the present are governed by Secs.83-90 of the Transfer of Property Act, 1882. In effect these sections, now embodied in Order XXXIV of the Schedule to the Civil P. C., protect a defendant mortgagor against a decree for sale, unless the amount due upon his mortgage, if not admitted, has either at the hearing been proved by the plaintiff or has been ascertained after the hearing by an account then directed, on, of course, a case for the taking of such an account having by evidence first been made.