SUBBAKKE SHETTITHI Vs. ANTHAMMA SHETTITHI

JUDGEMENT

(1.) The plaintiff became the owner of certain properties in 1925 by purchase from her father under Ex. F. At the date of this transfer, the properties were subject to the liabilities imposed upon them by the decree in O.S. No. 248 of 1917 in which her father was defendant 3. That was a suit by a sub-mortgagee from the first mortgagee and plaintiff's father was impleaded therein because he held a second mortgage over the same properties. In 1915 the present defendant as assignee from the first mortgagee had filed O.S. No. 52 of 1915 against the mortgagors and the plaintiff's father as second mortgagee but without impleading the sub- mortgagee. It is stated that at that time the second mortgagee might not have been aware of the sub-mortgage, but it is unnecessary to speculate as to that matter. A decree was passed in C.S. No. 52 of 1915 for the full amount of the first mortgage. The result in law would be that the first mortgagee decree-holder when he receives that amount would be bound to apply the requisite part of that amount in paying off the sub-mortgage so as to be able to re- transfer the mortgaged properties to the second mortgagee or the mortgagor free of all encumbrances created by the first mortgagee.

(2.) Before the decree amount in O.S. No. 52 of 1915 was paid, the first mortgagee decree- holder seems to have assigned that decree to his daughter and when she took out proceedings in execution, the second mortgagee paid the amount into Court on 12 June 1920. The terms of the assignment by the decree-holder to his daughter do not appear and as no defence was put forward in this suit based on the fact of that assignment I do not think it is necessary to pursue that matter further. I see no objection to deal with the case on the footing adopted by the lower appellate Court that the amount of first mortgage has been received by the defendant first mortgagee decree-holder whether as consideration for the transfer or through his daughter in the course of the execution. In either view his obligation to release the property from the sub-mortgagee can admit of no doubt.

(3.) In the sub-mortgagee's suit (O.S. No. 248 of 1917) the present defendant did not take any steps to satisfy that mortgage or the decree and the present plaintiff who had in the meanwhile become the owner of the. property under Ex. F, was obliged to satisfy the decree- holder by the execution of Ex. C, in 1926. She accordingly files this suit in 1927 to recover from the defendant the amount which she was obliged to pay in discharge of the sub- mortgage. She contends that both under law and under the terms of the decree in O.S. No. 52 of 1915 it was the duty of the defendant as first mortgagee to apply the amount received in discharge of the first mort-gage to pay off the sub-mortgagee and as the plaintiff to protect her own interest in the mortgaged properties has been compelled to pay off the sub-mortgage amount she is entitled to recover the same from the defendant.