SUBRAYA PAI Vs. SUBRAMANIA PATTAR

JUDGEMENT

(1.) This is an application to revise the order of the District Judge of South Kanara dismissing the appeal by the petitioner for setting aside a sale. The first point raised by Mr. Sitarama Rao, for the petitioner, is that the amount due under Ex. A was secured by a kanom deed and it was not a debt which could be attached and sold under Order 21, Rule 46, Civil P.C., as the kanom deed was a usufructuary mortgage-deed without covenant to pay the amount Both the lower Courts have held that there was a debt due under Ex. A and that could be attached under Order 21, Rule 46, Clause (1).

(2.) The point is whether Ex. A contains a covenant by the mortgagor to pay the amount to the mortgagee. If there is no -covenant to pay, the mortgagee cannot have the right to sue for the money secured under Ex. A and cannot in default of payment bring the property to sale. The relevant portion of the document is as follows: You shall be in exclusive possession and pay to our tarwad the settlement assessment on the lands at the proper time and take receipt. After the expiry of the 12 years, if in Kumbham of any year we pay the kanom of Rs. 3,000, you must receive the amount and deliver back possession of the lands. The question is whether these clauses contain a covenant to pay.

(3.) It is well settled that, in the case of an ordinary kanom demise, the kanomdar cannot sue for the kanom amount and bring the property to sale: vide Sridevi V/s. Virarayan [1899] 22 Mad. 350. The learned Judge, relying upon Peetikayil V/s. Othenam Nambiar [1915] 27 M.L.J. 239, has held that the amount secured under Ex. A is a debt. Naturally reliance is placed by Mr. Govinda Menon who appeared for the respondent upon that case as well as a recant case in Ranga-swami Ayyangar V/s. Veeraraghava Chari A.I.R. 1924 Mad. 513. The case in Chulile Peetikayil Nammad V/s. Othenam Nambiar [1915] 27 M.L.J. 239 was a reference by the District Munsif of Cannanore in which he asked for the authoritative opinion of the High Court as regards the mode in which debts secured on kanom deed should be attached. A Bench of this Court held, following the decision in Nataraja Ayyar V/s. South Indian Bank Ltd. [1914] 37 Mad. 51, that a kanomdar's interest could be attached and sold as it were a debt and they observe that the fact of the mortgagee being in possession, actual or constructive, of the mortgage property makes no difference. The case was not argued by counsel on either side and it does not appear that the decision in Manilal Ranchod V/s. Motibhai [1911] 35 Bom. 288 was brought to the notice of the learned Judges. The papers in the case have been sent for and they do not throw any light on the actual recitals in the document. From the letter of the District Munsif it appears that the judgment-debtor's right was described as one due under a panayam document. A panayam is an hypothecation or simple mortgage and in the case of a simple mortgage there is an undertaking by the mortgagor to pay the mortgagee the amount after the period fixed in the document. There is also a remark that it is admitted that the right of the judgment-debtor is kanom, there being a lease back to the mortgagor. In the absence of the document it cannot be said for certain whether there was or was not a covenant to repay the amount to the mortgagee. Granting there was not, sitting as a single Judge, I should be inclined to follow the decision in that case but for the fact that there is a decision of the Bombay Court: Manilal Ranchand V/s. Motibhai Hamabhai [1911] 35 Bom. 288 and two decisions of this Court, Ran- gayya Pillai V/s. Narasimha Ayyangar [1918] M.W.N. 672 and Ramaswami Moopan V/s. Srinivasa Ayyangar [1915] 39 Mad. 389, which throw a considerable light on the question in dispute and which enables me to distinguish the case in Chullile Peetikayil Nammad V/s. Othenam Nambiar [1915] 27 M.L.J. 239, from the facts of this case. In Manilal Ranchod V/s. Motibhai Hamabhai [1911] 35 Bom. 288 it was held that a debt secured by a usufructuary mortgage cannot be attached as if it were a simple debt under Section 264, Civil P.C., 1882, corresponding to Order 21, Rule 46, of the present Code. In that case the recital in the document was: After the expiration of the fixed period when I repay the principal sum on the very day and in the very month in which I have received the sum, you may give up the field in Vaishakh in that year.