RAMANA GOUNDAN Vs. VELLAPPA GOUNDAN

JUDGEMENT

(1.) Second appeal by defendants against the decree of the Court of the Second Additional Subordinate Judge, Coimbatore, in A.S. No. 11 of 1922 (A.S. No. 44 of 1922 on the file of the District Court). The facts giving rise to .this second appeal are these. The defendants instituted a suit against the plaintiffs on foot of a hypothecation bond, and obtained a preliminary decree for Rs. 1,530-2-8on 26 July, 1918. The plaintiffs applied to have the decree set aside and it was set aside with the consent of the defendants on the plaintiffs depositing into Court the full decree amount inclusive of costs. The suit was r?-heard and a revised preliminary decree was passed on 15 March 1919. Against this decree the plaintiffs appealed and the appeal was dismissed on 20 October, 1919. Thereupon the defendants applied to have a final decree passed and this was done on 25 November, 1919. In pursuance of this decree the mortgaged properties were sold on 8 March, 1920, and realised a sum of Rs. 1,010. The amount due under the final decree was Rs. 1,634-3-4 with subsequent interest and costs and giving credit for Rs. 1,010, the defendants applied for a personal decree against the plaintiffs for the balance and attached the amount that had been deposited in Court when the first preliminary decree was set aside. The plaintiffs received notice of this application on 12 June, 1920, and instituted the suit from which this second appeal arises on 12 July, 1920, for a declaration that the final decree and all subsequent execution proceedings were null and void and not binding on them. The allegations on which this relief was sought are to be found in paras. 10, 11 and 12 of the plaint. They are to the effect "that they (plaintiffs) were kept in the dark about the proceedings relating to the passing of the final decree, that the present defendants so contrived that no notice was personally served on them in those proceedings, that the mortgaged properties which were worth not less than Rs. 3,500 were sold for a shockingly low price of Rs. 1,010, that there was no publication at all of the sale proclamation in the village, that the valuation given in the sale proclamation as also the upset price fixed were too low; and that the decree amount having been already deposited in Court, there was no necessity at all for further proceedings by the defendants and that the conduct of the defendants in applying for a final decree for the entire amount behind the back of the plaintiffs and ignoring the Court deposit, was highly improper and fraudulent." The defendants traversed all the allegations in the plaint and also contended that the suit was not sustainable and that the remedy of the plaintiffs, if any, was under Order XXI, Rule 90, C.P.C., as also under Order IX, Rule 13.

(2.) No oral evidence was adduced before the District Munsif, and on the documentary evidence placed before him he came to the conclusion that no separate suit lay for the relief claimed and that the defendants were not bound to give credit for the amount which had been deposited when the first preliminary decree was set aside. On appeal the learned Subordinate Judge held that the defendants were bound to give credit for the amount in deposit, that they have failed to do so, and that their conduct in getting a final decree passed for the entire sum due was fraudulent; and relying upon a decision in Hatem Ali Khundkar V/s. Abdul Gaffur Khan 8 C.W.N. 102 he reversed the decree of the first Court and passed a decree for the plaintiffs.

(3.) It was contended before me that this finding was wrong and the question to be considered, therefore, is, whether the defend; ants were bound to give credit for the sum of Rs. "1,530-2-8 which was deposited in Court by the plaintiffs on 4 September, 1918, and whether they were entitled only to have a final decree passed for the balance.