RAMASWAMI CHETTI Vs. ANAIYA PADAYACHI

JUDGEMENT

(1.) This second appeal arises out of a suit to enforce a mortgage bond dated 15 September 1900. It was executed by one Karuppa Padayachi, the late undivided father of defendants 1 to 3 in favour of one Devantha Chetty for Rs. 1,000. The plaintiff obtained an assignment for the mortgage on 21 August 1908. The mortgaged properties were sold in Court auction between 9 October 1918 and 31 December 1918, in execution of simple money decrees against the mortgagor and was purchased by one Krishnadesikachariar from whom the plaintiff purchased in 1924. Prior to his purchase defendant 4 was also a puisne mortgagee under two mortgages dated 1904 and 1911. As puisne mortgagee, in O. P. No. 37 of 1919 on the file of the District Munsif's Court of Cuddalore, defendant 4 deposited a sum of Rs. 2,707 into Court under Section 83, T.P. Act, in redemption of and full discharge of the suit mortgage.

(2.) The plaintiff contended that more was due to him but a consent memo seems to have been filed in that O. P. on 29 January 1920, Ex. D, in and by which it was agreed that without prejudice to the contentions of the parties the plaintiff might draw the amount and the plaintiff accordingly received the said amount. The suit is filed on 9 October 1930. To save the bar of limitation, he relied on a number of payments endorsed on the mortgage-deed, the last of which was on 9 October 1918. Defendants 1 to 3 were ex parte and defendant 4 pleaded that the endorsement dated 9 October 1918 was false, that the said mortgage was long ago discharged by the deposit of the amount due in the said O. P. No. 37 of 1919 and the suit was not maintainable. The learned District Munsif found the endorsement not genuine. He also found that nothing was due under the document as according to him the amount that was deposited in Court went in full discharge of the mortgage. He came to this conclusion on a construction of the document. It may be stated that the plaintiff's case is that upon a proper construction of the document interest at a particular rate should be allowed and if that was done, a considerable sum of money would be due to him and that was the amount which he claimed in the suit. It is this contention which the learned District Munsif negatived.

(3.) On appeal the learned Subordinate Judge concurred in the opinion of the District Munsif that the endorsement was a forgery and the alleged payment was false, but he was of opinion that the amount deposited into Court should not be taken to be in full discharge as according to his construction of the document more would be due, but however in the view he took of the endorsement he dismissed the appeal. In view of the findings of the fact that the endorsement of 9 October 1918 was not true, the suit is barred and the second appeal ought to be dismissed. But Mr. Panchapagesa Sastri contends that the suit is not barred by reason of an acknowledgment of liability by the mortgagor in Ex. C, dated 31 December 1918, executed by the mortgagor in favour of the plaintiff. That document purports to be executed in discharge of the suit mortgage for the principal amount due thereunder, the reason, for such execution being that the plaintiff had obtained an assignment of the original suit mortgage bond. It was admittedly after the Court sale of the suit properties. In the plaint, it may be stated the plaintiff did mention Ex. C, but he alleged that so far as defendant 4 was concerned he was not acting on it. It may also be pointed out that this ground of exemption now relied on has neither been stated in the plaint nor put forward in either of the two Courts but is now taken for the first time in second appeal.