KASI VASI CHOKKALINGA TAMBIRAN Vs. RAMANADAN

JUDGEMENT

(1.) This is an appeal by an alienee of mortgaged property against an order declaring in what order the mortgaged properties are to be sold. The Subordinate Judge has directed that the property alienated to the appellant should be sold first, and the property in the hands of Defendants 4 to 6 which was sold to them free from all encumbrances, should be sold next and that the property in the possession of the mortgagor should be sold last. Under the sale- deed by the mortgagor to the appellant a sum of Rs. 1,1500 was directed to be paid towards the balance due on the mortgage. Admittedly no portion of this amount was paid until after the mortgage suit was filed and, consequently, it is only fair to hold as the Subordinate Judge has held that the appellant was most largely in default in the payment of the mortgage-debt. It is now contended in appeal that the appellant's alienees having paid Rs. 11,500 into Court appellant is not liable to pay any further amount towards interest or costs on the ground that he was not bound to pay this amount of Rs. 11,500, uptil the mortgagor had tendered the balance of the mortgage amount to the mortgagee He relies on a decision of the Privy Council in Muhammad Siddiq Khan V/s. Nasir Ullah Khan [1899] 21 All. 223 but that case can be distinguished on the facts. There it was held by the Allahabad High Court that when the sale was effected by the mortgagor there was an agreement that a portion of the consideration which was to be applied in discharge of the mortgager-debt was to be retained by the vendee as security for the balance of the payment by the vendor-mortgagor. It was also found that a tender had been made by the vendee of the amount due by him, but that the vendor decline 1 to offer. In appeal to the Privy Council their Lordships remarked that: they are of opinion that there is no ground for the appeal.

(2.) And they go on to state, The Rs, 17,000 were not left with the vendees simply as a deposit of the money of the vendor. They were to retain it as a security that the property sold should be freed from encumbrances upon it and that they should have a good title They were entitled to retain it until the vendor provided the rest of the money necessary for this purpose.

(3.) Then they proceed: From the nature of the transaction it was not a deposit upon which the vendees would be liable to pay interest unless they refused or omitted to pay the money when they were informed by the vendor that he was prepared to pay the balance necessary to satisfy what was due. Without that balance they were not bound to pay or tender to him the Rs. 17,000.