R VENKATESA AIYANGAR Vs. PRYMANIKKAVACHAKAM CHETTY

JUDGEMENT

(1.) These are connected appeals concerned with p property which has been subject to five successive mortgages. The first was a usufructuary mortgage executed in January, 1910, for Rs. 4,000; the second was a simple mortgage executed in July, 1912 for Rs. 500; the third was a simple mortgage executed in August, 1917 for Rs. 10,000; the fourth was a simple mortgage executed also in August, 1917 for Rs. 691-12-0 and the fifth was a simple mortgage executed on the 27 February, 1920 for Rs. 4,500. The fifth mortgage was executed in favour of the appellant in these appeals and of the sum of Rs. 4,500 secured by that mortgage, Rs. 4,000 was devoted to the discharge of the first usufructuary mortgage of 1910 on the same day.

(2.) In 1923 the second mortgagee filed a suit (O.S. No. 799 of 1923) to enforce his mortgage in which the appellant was impleaded as the fifth defendant. The appellant there claimed that he was entitled to priority in respect of the Rs. 4,000 which he had paid to redeem the first mortgage together with interest on that sum, and a decree was passed recognising that contention in full. The property was in due course proclaimed for sale and then an order was passed under Order 34, Rule 12 with the consent of the appellant that the property should be sold free of his rights as subrogated mortgagee and that he himself should be paid first out of the sale proceeds. Meanwhile, however, before the date of the sale the third mortgagee paid off the decree amount to the second mortgagee and no sale was held, the decree being declared fully satisfied. This was on 25 January, 1928. On the 13 March the appellant filed an application requesting that the property should be brought to sale in execution of the same decree in O.S. No. 799 of 1923 resting his rights upon the order passed under Order 34, Rule 12. This application was dismissed by the District Munsif and the District Munsif's Order was upheld by the learned District Judge of South Arcot. Against this, the appellant has filed C.M.S.A. No. 116 of 1931.

(3.) In 1925 the third mortgagee filed O.S. No. 7 of 1925. Here again, the appellant was impleaded as the seventh defendant and again he claimed priority for the sum of Rs. 4,000 with interest. The judgment in this suit was pronounced on 23 December, 1925, allowing priority to the extent of Rs. 4,000 but without any discussion of the claim to receive interest on this sum and the decree was drawn up in accordance with the terms of the judgment. In April, 1926, the appellant applied for the amendment of this decree, his first relief being to make clear that his priority was in regard to the Rs. 4,000 and interest thereon . This application was permitted to be withdrawn in July, 1926, with liberty to bring a fresh petition. In October, 1926, a second application was made by the appellant in which he no longer repeated his request to amend the decree but asked that the Court might be pleased to direct the sale of the hypotheca free of the petitioner's prior mortgage and that out of the proceeds the principal and interest due should be paid to the petitioner . This petition was disposed of on 18 February, 1927, by the following order: Both parties have no objection to sell the properties in question free of the petitioner's prior mortgage. The question as to whether as claimed herein the petitioner is entitled to claim also interest on his prior mortgage amount of Rs. 4,000 shall be considered under Order 34, Rule 13, Civil Procedure Code, after the realisation of the sale proceeds and when the same is distributed. The petitioner is at liberty then to press his claim for the same. Petition is closed.