ACHANTA VENKATA PURNA SIVARAMAYYA Vs. MANNE VENKAYYA

JUDGEMENT

(1.) This appeal has been preferred by defendants 1 to 8 and it relates to a mortgage executed by defendants 1 and 2 and their deceased father in favour of the. 13 defendant for a sum of Rs. 3,000 on 14 December, 1919. The plaintiff now stands in the shoes of the mortgagee. In 1930 the mortgagors sold one of the two items mortgaged to the 9 defendant under Ex. P-4, and he sold it to the 10 defendant who gifted it to the 14 defendant. The sale to the 9th defendant was for the purpose of discharging the mortgage debt of Rs. 3,000, and it is expressly recited in the deed that " it has been settled that the aforesaid sale consideration shall be paid by you, immediately after the registration of this document, towards the debt due in respect of the mortgage dated 14 December, 1919." A debt due on another mortgage is also mentioned in the sale deed as an item that the 9 defendant undertook to pay off; but nothing appears from the records as to what happened to that mortgage. The 9 defendant claimed the right to have item (1) sold to him, sold last stating that he had discharged the mortgage by payment to the 13 defendant. The Subordinate Judge was not prepared to record any definite finding if the amount had or had not been paid by the 9 defendant, but proceeded to consider the question whether it was an open payment, assuming that the amount had been paid. In paragraph 11 of his judgment, he does not wish to record a finding; but, in paragraph 12 he says: I, therefore, hold that though the payment of Rs. 3,000 by the 9 defendant is true, it has not been proved to be an open payment.

(2.) Finally, while decreeing the suit, he gave a direction that item (1) should be sold last.

(3.) On appeal by defendants 1 to 8, the District Judge found against the payment pleaded, in these words: These are some of the circumstances on the strength of which I am inclined to agree with the appellant's contention that the 9 defendant did not pay the purchase money under Ex. P.4.