A VIJIARAGHAVALU NAIDU (DIED) Vs. RMARRMARUNACHALAM CHETTIAR

JUDGEMENT

(1.) The original appellant sued for the recovery of a sum of money alleged to be due under a mortgage deed Ex. A, executed by the first defendant in favour of one Narayana Chettiar on 14 December, 1914. Narayana Chettiar became insolvent in 1924. The Official Receiver in whom the assets of Narayana Chettiar vested purported to sell by auction several items of the insolvent's property including the claim under the suit mortgage and the plaintiff purchased them on 19 March, 1929. The plaintiff purchased the items thus sold for a sum of Rs. 1,010 which was paid on 19 March, 1929, itself. The sale appears to have been sanctioned by Court on 17 April, 1929, but for some reason or other a formal sale-deed was not executed till 30 April, 1930. The mortgage deed fixed a period of three years for payment and the twelve years under Art. 132 of the Limitation Act would thus have expired on 14 December, 1929. The appellant was accordingly obliged to institute this suit on 14 December, 1929, even though no sale-deed in his favour had by that time been executed by the Official Receiver. Though the mortgage purported to be for Rs. 15,000 the plaint stated that only a sum of Rs. 5,500 had been advanced under the document and it claimed to recover that amount with interest, limiting the total claim to Rs. 10,000.

(2.) The plaint was at one stage rejected by the lower Court but later on it was restored. After this restoration, the first defendant filed a written statement raising various pleas of fact and questions of law. On the facts, he contended that the mortgage deed was nominal and no money had been received by him under that deed. As a point of law, he contended that the plaintiff had no right to maintain the suit in the absence of a registered sale-deed. He also contended that the restoration of the suit after the plaint had once been rejected was invalid, as the Court had no power so to restore and the only remedy of the plaintiff was to appeal against the rejection of the plaint.

(3.) On the evidence, the learned Subordinate Judge was of opinion that the mortgage deed was supported by consideration only to the extent of Rs. 1,000 but as the Judge decided the questions of law against the plaintiff he dismissed the suit. Hence this appeal.