ULAGANATHA MUDALIAR Vs. MOLAVEEDU ALAGAPPA MUDALIAR

JUDGEMENT

(1.) This is an appeal against the order of the Subordinate Judge of Tuticorin in E.P. No. 159 of 1926 in O.S. No. 92 of 1916. This execution petition prayed that the immovable properties of respondents 1 to 10 should be attached and sold and it was allowed. The appellants are respondents 7 to 10 in the execution petition and defendants 7 to 10 in the suit. The respondent is the assignee decree-holder.

(2.) The history of the execution proceedings which led up to this order is somewhat complicated. The main points are as follows: The respondent's predecessor-in-title had instituted a suit O.S. No. 92 of 1916 on a mortgage. On 29 September 1917 a compromise decree between the parties was passed. A final decree was passed on 14 September 1918 and a personal decree on 23 October 1919. By the terms of the razinama decree out of Rs. 13,200 settled as the amount due from the date of the plaint with subsequent interest and costs, Rs. 2,100 was to be remitted by the plaintiff in favour of the defendants and in respect of the balance of Rs. 11,000, Rs. 7,100 was to bear interest at 1 1/4 per cent per mensem from the date of the decree and the said interest was to be paid in two instalments, one of Rs. 3,550 on 14 Margali 1093 and another of Rs. 3,550 on 11 Panguni of the same year, and out of the balance of Rs, 4,000 which was not to carry interest, Rs. 500 was to be. paid on 16th Panguni 1093 and another Rs. 500 six months afterwards and so on up to 16th Perattasi 1097. The final clause is: If the above is not paid in any particular instalment, the whole amount including Rs. 2,100 agreed to be remitted shall be paid with 1 1/4 per cent per mensem from the date of the default from out of the mortgaged properties and from other properties belonging to the defendants and personally.

(3.) Default was made, but when the final decree was passed on 14 September 1918 interest was apparently by in advertance omitted. The assignee decree-holder put in an application, E.A. No. 185 of 1922, to have the petition and the personal decree amended by adding interest; but the petition was dismissed by consent on the following terms: We agree to the present petition being dismissed. But the petitioner reserves his right of saying that the defendants are debarred from questioning their liability to pay interest in the execration petition itself. Subject to such defences defendants may take them (sic). Defendant 7 will then be precluded from contending that the question of interest ought to have been decided in the present petition.