V S MUHAMMAD HUSSAIN AMBALAM Vs. RAMANATHA AYYAR

JUDGEMENT

(1.) THIS is an appeal from the order of the Subordinate Judge of Ramnad at Madura, dated January 18, 1932, returning the plaint in O.S. No. 59 of 1931 on his file for presentation to the proper Court. His view was that the suit was one which was within the jurisdiction of a District Munsif and that the plaintiff had no right to value the suit for purposes of jurisdiction at Rs. 9,803 which was the amount due under the mortgage regarding which the plaintiff sought a declaration in the suit. The plaintiff is the appellant in this appeal and the only point for determination is whether the valuation of the suit for the purpose of jurisdiction by the plaintiff is not correct. The facts of the case which are necessary for an understanding of the question at issue are that, when the property which had been mortgaged to the plaintiff by the judgment-debtor in O.S. No. 59 of 1928 on the file of the Principal District Munsif's Court of Madura was brought to sale by decree-holder therein, the plaintiff, the mortgagee, filed a claim petition praying that the sale in execution should be subject to the mortgage in his favour. THIS petition was contested by the decree-holder who alleged in his counter-affidavit that the mortgage was not a valid one and in fact disputed its genuineness, the payment of consideration and so on. In short he claimed to sell the property free of the mortgage which, according to him, was not a valid one. The claim petition by the mortgagee was dismissed by the Executing Court, and he filed the present suit not merely to set aside the order on the claim petition but also for a declaration that the mortgage in his favour was genuine and for proper consideration and he also impleaded the mortgagor as a party to his suit. It is clear from the plaint that the causes of action disclosed therein include a cause of action in respect of the declaration regarding the validity of the mortgage apart from the causa of action regarding the setting aside of the claim order. It is not contended that these causes of action have been wrongly joined together. In valuing for purposes of jurisdiction the plaintiff is entitled so far as the prayer for declaration in respect of the mortgage is concerned, to value it at the amount due under the mortgage as that represents the true value of the subject-matter in dispute. The learned Subordinate Judge appears to think that the decisions in Krishnaswami Naidu V/s. Somasundaram Chettiar 30 M 335 and in Maddukuri Ankanna V/s. Muvvalla Subbaya 37 M.L.J. 611 : 51 Ind. Cas. 513, compel him to hold that the suit must be regarded as being one only for the purpose of setting aside the claim order. I am, however, unable to find anything in these decisions which has this result. In Krishnaswami Naidu V/s. Somasundaram Chettiar 30 M 335, it is expressly stated in the opinion of the Full Bench that the plaint did not contain any statement of any cause of action as against the judgment-debtor for a declaration about the plaintiff's title to the property and the Full Bench also distinguished the case before them from the case in Dwarka Das V/s. Kameshar Prasad 17 A 69, on the ground that in the latter case there was a distinct claim against the judgment-debtor for a declaration of title to the property in addition to the declaration claimed against the attaching creditor. On the other hand, the decision in Fisher V/s. Arunachallam Chettiar 19 M.L.J. 233 : 2 Ind. Cas. 522, which was followed in Narayan Singh V/s. Aiyasami Reddi 39 M 602 : 31 Ind. Cas. 188 : 39 M 802 : 29 M.L.J. 728, clearly supports the appellant's contention. I am of opinion that the plaint as framed certainly discloses a cause of action in respect of the declaration regarding the validity of the mortgage against all the defendants besides a cause of action in respect of setting aside the order passed on the claim petition. Once this is found, it follows that the valuation in the plaint is correct and that the finding of the lower Court cannot be sustained. The order of the lower Court directing the return of the plaint is, therefore, set aside and the lower Court is directed to restore the plaint to its original number on the file and dispose of it according to law. The appellant is entitled to have his costs of this appeal from the contesting 1st respondent, that is, the decree-holder.