VENKATVAYULU REDDIAR Vs. SHAIK FARID SAHIB

JUDGEMENT

(1.) We think that the principle laid down in the case of Ponnusami Mudaliar v. Srinivasa Naickan 31 M. 333 and the cases there quoted is applicable to the facts of the present case and that the District Judge was in error in dismissing the suit on the ground that soc. 85 of the Transfer of Property Act required him to adopt that course.

(2.) There is, we think, no reason why the plaintiff should not, in this suit, to allowed to recover what is due to him not exceeding the amount rateably due on the property against which he wishes to proceed, i.e., the mortgaged property excluding the portion mortgaged to the 15 defendant.

(3.) We, therefore, set aside the decree of the District Judge and direct him to restore the appeal to his file and dispose of it according to law. Costs in this case will abide the result.