T N V KAILASA THEVAR Vs. VRAMASWAMI AYYANGAR

JUDGEMENT

(1.) The appellant in the above appeal was the first defendant in O.S. No. 30 of 1934 on the file of the District Court, East Tanjore, at Negapatam. The main facts which led up to this appeal are the following: The first defendant for himself and on behalf of his minor brother, the 2nd defendant, and the guardian of defendants 3 to 7 who are the sons of a cousin of the 1 and 2nd defendants gave a simple mortgage over some properties to the plaintiffs. The mortgage was sued on and resulted in a preliminary decree, dated 15 May, 1937 and a final decree, dated 28 January, 1938. It was held that the mortgage was not binding on the 2nd defendant and the decree fixed the amount payable by defendants 1 and 3 to 7 at Rs. 1,08,008. Defendants 3 to 7 filed Appeal No. 48 of 1938 in this Court contending that the mortgage was not binding on them and that their shares should not have been made liable. The 1 defendant was also a party to this appeal. The plaintiffs appealed in A.S. No. 248 of 1938 against the decree of the trial Court in so far as it refused them relief against the 2nd defendant's share. Both the appeals were against the preliminary decree. The Madras Agriculturists Relief Act IV of 1938 came into force during the pendency of the appeals and petitions were filed by defendants 2 to 7 praying that the decree which may be passed by the High Court may be scaled down in accordance with the provisions of that Act. These petitions were sent down by the High Court to the trial Court for investigation and report. The 1 defendant participated in the investigation along with the other defendants and it was reported to the High Court that all the defendants were agriculturists. The High Court held that the mortgage was binding on the 2nd defendant and that his share also was therefore liable. The contention of defendants 3 to 7 that the mortgage was not binding on them was rejected, with the result that it was finally decided by the High Court that the mortgage was binding on the interests of all the mortgagors. Scaling down of the decree was ordered so far as defendants 2 to 7 were concerned while no scaling down was ordered with reference to the 1 defendant who made no application. Clause 3 of the decree of the High Court declares that the amount due from the 2nd defendant as scaled down is Rs. 49,255 apart from costs. Clause 4 contains a direction that the same amount should be paid by defendants 2 to 7 into Court. Clause 5 provides that in default of payment as directed above, the Other directions regarding the sale of the mortgaged properties and the payment to the plaintiffs of the amount due to them contained in the said decree of the lower Court shall apply in the case of the 2nd defendant also. This is followed by clause 6 which states that the decree of the lower Court "in other respects subject to the directions in clauses 3 and 4 above and as against the 1 defendant be, and hereby is confirmed." We may add that the preliminary decree of the lower Court providing that in default of the payment which had been directed, the plaintiff may apply to the Court for a final decree for the sale of the mortgaged property and that on such application being made the mortgaged property or a sufficient part thereof shall be directed to be sold, was in no way altered by the decree passed by the High Court in the appeals. That is to say, there was no specification of the different interests in the hypotheca of the several defendants.

(2.) The 1 defendant applied to the trial Court in I.A. No. 104 of 1942 for an amendment of the decree under Section 19 of Madras Act IV of 1938. This petition was dismissed. He also applied to the High Court for the re-hearing of the appeals and for permitting him to file an application to have the decree scaled down as against him. These petitions too were dismissed. A revised final decree was passed by the District Court on 25 September, 1943. This merely states that the payment directed by the preliminary decree of the trial Court dated 15 May, 1937, as modified in appeal by the High Court has not been made and proceeds to direct" that the mortgaged property in the aforesaid preliminary decree mentioned or a sufficient part thereof be sold."

(3.) The decree was put into execution. There were three payments by defendants 2 to 7 of Rs. 24,000, 30,000 and 18,610-12-0 on 20 January, 1947, 27th January, 1947 and 17 February, 1947, respectively. On the 6 of March, 1947, the 1 defendant filed E.A. No. 78 of 1947 stating that the scaled down debt stood at Rs. 75,342-11-8 on 16 December, 1946, that as payments amounting to Rs. 72,610-12-0 had already been made, there was still due Rs. 3,200-1-4 and that making a small allowance for mistakes in calculations regarding interest or execution costs he was depositing along with his application Rs. 3,215 and prayed that the deposit should be accepted and full satisfaction of the decree should be entered up and the entire hypotheca released from the mortgage. This application was resisted by the decree-holders and the lower Court dismissed it. This appeal is against that order of dismissal.