P R GOVINDASWAMI NAICKER Vs. CJAVANMULL SOWCAR

JUDGEMENT

(1.) This is an appeal from the order of the learned Additional Judge of the City Civil Court, Madras, in C.M.P. No. 1488 of 1938, dated the 12 May, 1938, in which he refused to issue a temporary injunction under Order 39, Rule 1 of the Civil Procedure Code.

(2.) The plaintiff in the suit O.S. No. 815 of 1938 prayed for a permanent injunction restraining the first defendant from exercising his power of selling out of Court three houses situated in the City of Madras. The three houses together with an oil engine, it is alleged, had been mortgaged in the first instance to the second defendant in 1934. The first defendant is a subsequent mortgagee whose deed was executed by the plaintiff on 28 January, 1935. It is not disputed that the deed gives first defendant power of sale without the intervention of Court and therefore under Section 69(i)(c) of the Transfer of Property Act, the first defendant has power to sell the mortgage property out of Court. The plaintiff's case is that he is an "agriculturist" and that under Section 7 of the Madras Act IV of 1938, he is entitled to have his debt to the first defendant scaled down in accordance with the provision of the Act. His contention is that a sale out of Court for an amount in excess of what would be due from him to the first defendant after such scaling down is an injury which the first defendant should be prevented from inflicting upon him by means of a permanent injunction. The learned Judge of the City Civil Court considers that this point does not arise at the present stage. He thinks it will only arise after the property has been sold and that the plaintiff will have a remedy in damages under Section 69(3) of the Transfer of Property Act. I agree with my learned brother Stodart, J., who expressed the opinion in his order on C.M.P. No. 2464 of 1938 that it is no answer to say that under Section 69 of the Transfer of Property Act, the petitioner will be entitled to recover damages if the mortgagee exercises his power of sale in an improper or irregular manner. Section 7 of the Madras Act IV of 1938 expressly says: Notwithstanding any law, custom, contract or decree of Court to the contrary all debts payable by an agriculturist at the commencement of this Act shall be scaled down in accordance with the provisions of this Chapter.

(3.) It goes on to say: No sum in excess of the amount as so scaled down shall be recoverable from him or from any land or interest in land belonging to him.