MADHAVARAPU SATHIRAJU Vs. MADHAVARAPU VENKANNA

JUDGEMENT

(1.) The plaintiffs-appellants purchased some properties from defendants 2 to 6 under a sale deed, Ex. A dated 28 January 1928, and they obtained possession. This sale was executed in pursuance of an agreement, Ex. N, dated 26 January 1928. The present defendant 1, however claimed to have obtained an earlier agreement for sale of the same properties (Ex. 4) though dated the same date as Ex. N and he filed 0.S. No. 8 of 1928 for specific performance of that agreement. The properties which formed the subject of these sales and certain other properties were liable to a mortgage claim in favour of defendant 7 under Ex. B dated 19th January 1916. 0.S. No. 8 of 1928 was filed on 13 February 1928 and during the pendency of that suit the present plaintiffs, as vendees under Ex. A, paid a sum of Rupees 12,000 odd to defendant 7, on 29 February 1928, in discharge of Ex. B. The suit for specific performance was decreed in favour of the present defendant 1 and by that decree defendant 1 was directed to deposit into Court a sum of Rs. 14,465 before 2 December, 1929, but it was directed that the amount so deposited be kept in Court till 4 January 1930 as there might be equities to which defendants 1 to 3 (the present plaintiffs) may be entitled on account o? their having discharged the mortgage debt.

(2.) On a later application, after the amount had been so deposited, the Court ordered, on 6th September 1930, that only a sum of Rs. 8,000 should be drawn by the present plaintiffs out of the deposit amount, as the present defendants 2 to 6 (who were defendants 4 to 8 in that suit) did not admit that more than Rs. 8,000 should have been paid in discharge of the mortgage. The plaintiffs were left to work out any further claim of theirs in a regular suit.

(3.) This suit was accordingly instituted on 8 September 1930. claiming that the plaintiffs are entitled to Rs. 4,319 being the balance of the amount that they had paid to defendant 7 and they prayed that this amount with future interest may be directed to be paid either as a charge on the properties covered by the mortgage or out of the amount in Court deposit. Various defences were raised by the different sets of defendants. Defendant 1 (who is the succesful decree-holder in the suit for specific performance) contended that the properties in his possession should not be made liable at all. Defendants 2 to 6 contended that the plaintiffs were not entitled to more than Rs. 8,000, if at all and they further contended that the plaintiffs claim was barred by limitation. They also pleaded some misrepresentation and estoppel in connexion with the circumstances under which the plaintiffs were alleged to have told them that they would get the mortgagee to accept Rs. 8,000 in full discharge. Certain attaching creditors of defendants 2 to 6, who were also impleaded as defendants in the suit, pleaded that the plaintiffs remedy, if any, was against the properties themselves and not against the amount in Court deposit which they had attached in execution of money decrees obtained by them against defendants 2 to 6. The learned Subordinate Judge held that the plaintiffs claim was not barred by limitation and that there was no estoppel made out against them and also that the amount of Rs. 12,319 paid by them to the mortgagee was a proper payment and did not include any penal interest. But he was of opinion that the plaintiffs were not in the circumstances entitled to claim any kind of charge either on the properties covered by the mortgage or on the amount in Court deposit and he therefore granted only a personal decree for a sum of Rs. 7,500 odd and subsequent interest against defendants 2 to 6. The plaintiffs have filed this appeal claiming that they are entitled to a charge either on the properties or on the amount deposited in Court.