PICHAI KONAR Vs. NARASIMHA RAMA IYER

JUDGEMENT

(1.) The first defendant is the appellant before me in this Second Appeal. The plaintiff filed a suit, as originally framed, for a declaration of the invalidity of a mortgage decree obtained by the first defendant in O.S. No. 53 of 1918 on the file of the Sub-Court, Kumbakonam. The plaint underwent three processes of amendment and, finally, the plaint, as amended, contained a prayer for subrogation inasmuch as the plaintiff on 29 March, 1919, discharged in good faith a prior mortgage in favour of one Doraisami Padayachi by Veerabhadra Padayachi in respect of the properties which the plaintiff alleged he had purchased in Court auction. At the trial of the suit before the first Court this question of the plaintiff's right to subrogation was a material question discussed. The Trial. Court decided (tide paragraph 7 of its judgment) that the plaintiff was entitled to be subrogated to the rights of the prior mortgagee and, consequently, it gave the plaintiff a decree for the amount prayed for with interest. The plaintiff was also given costs in respect of the said relief granted to him. Appeals were preferred to the Lower Appellate Court by the plaintiff and the 1 defendant. The plaintiff's appeal was dismissed and I have no further concern with the same for the purpose of this second appeal. On the 1 defendant's appeal, the learned Subordinate Judge, after noticing that the plaint was amended thrice and that the materials before the Court were not as satisfactory as one would wish, proceeded to discuss the question whether the plaintiff was entitled to interest and costs decreed to him by the first Court. There was discussion before the Lower Appellate Court whether the 1 defendant was entitled to raise the further question whether the plaintiff was entitled to subrogation-or not. The learned Subordinate Judge pointed out that, though the grounds of appeal raised the question, the subject-matter of the appeal was confined to interest and costs allowed to the plaintiff. The 1 defendant's pleader then took refuge under the power of the Court under Order 41, Rule 33, Civil Procedure Code, to do justice in the matter. The Lower Appellate Court accordingly proceeded on the footing that the appeal before it was confined to the question of interest and costs, it followed the decision of this Court in Malireddi Ayyareddi V/s. Adusumalli Gopalakrishnayya (1920) 58 I.C. 493 and held that the plaintiff was entitled to the interest that was awarded to him and that the 1 defendant was not right in saying that the plaintiff should not have been awarded interest for the period during which he was in possession of the properties as purchaser of the equity of redemption. The 1 defendant has preferred this second appeal.

(2.) The learned Advocate for the appellant raised the question at the beginning of this second appeal, namely, that the Lower Appellate Court was wrong in not going into the question whether the plaintiff was in the circumstances entitled to be subrogated to the rights of the prior mortgagee, Doraisami Padayachi. He argued that in the grounds of appeal to the Lower Appellate Court his client specifically raised the question whether the plaintiff was entitled to any subrogation at all, and, consequently, if there had been any deficit of Court-fee payable on the appeal memorandum, it was clearly the duty of the Court to direct the deficit Court-fee to be paid and not to decline to allow the pleader for the 1 defendant-appellant to argue the question of subrogation. On the other hand, the learned Advocate for the respondent drew my attention to the discussion of this question in paragraph 6 of the judgment of the Lower Appellate Court. Reading that paragraph, it appears to me, that, for reasons best known to him, the 1 defendant's pleader confined the subject-matter of the appeal to the Lower Appellate Court only to the amount of interest and costs. In fact, the appeal memorandum to the Lower Appellate Court printed at pages 14 to 16 clearly supports this position. . The valuation of the appeal is Rs. 595-5-10, made up of interest payable on Rs. 800 from the date of Court sale to date of delivery through Court, namely, Rs. 377-5-0 and costs Rs. 212-13-0. No doubt, during the discussion of the appeal in the Lower Appellate Court it was open to the pleader for the 1 defendant to explain to the Court the mistake, if any, committed in regard to the valuation of the appeal and the Court-fee paid thereon. If he had offered to amend the valuation of the appeal and if he had offered to pay any Court-fee that might have to be paid in consequence of the amendment, the Lower Appellate Court would probably have in the circumstances directed the amendment to be made. But, as the pleader for the 1 defendant did not consider it proper to take up that attitude, he relied on the power of the Court to pass orders under Order 41, Rule 33, Civil Procedure Code. The learned Advocate for the appellant before me did not support the attitude taken by the pleader for the 1 defendant in the Lower Appellate Court, (and I think properly) because Order 41, Rule 33, Civil Procedure Code, is not applicable to the circumstances of the present case. If I were satisfied that a mistake had been committed in the Lower Appellate Court, quite a different course would be adopted by me; but, in the absence of an affidavit showing that there was a mistake, and having regard to the discussion in paragraph 6 of the judgment of the Lower Appellate Court, I think I must proceed to deal with this case on the footing that the appeal to the Lower Appellate Court was only in respect of interest and costs allowed to the plaintiff.

(3.) The second point argued by the learned Advocate for the appellant was with respect to the interest decreed to the plaintiff for the period during which he was in possession. The learned Subordinate Judge relied on a decision of this Court in Malireddi Ayyareddi V/s. Adusumalli Gopalakrishnayya (1920) 58 I.C. 493 and held that, the plaintiff was entitled to interest on the amount of the prior mortgage. He, in fact, decreed it with interest thereon. The accidental circumstance, that the plaintiff became the purchaser in Court auction by payment of money, and as compensation therefor he happened to be in possession, does not in any way prejudice his right as a person entitled to the rights of the prior mortgagee whom he paid up. The learned Advocate for the appellant also argued that the decision in Syed Ibrahim Sahib v. Arumugathayee (1912) I.L.R. 38 M. 18 supported his position. To certain extent it does; but, as was pointed out by the learned Advocate for the respondent, that decision was dissented from in Muthammal V/s. Rasu Pillai (1917) I.L.R. 41 M. 513 the decision in Malireddi Ayyareddi V/s. Adusumalli Gopalakrishnayya (1920) 58 I.C. 493 following the decision in Mulhamntal v. Razu Pillai (1917) I.L.R. 41 M. 513. Finally, it was brought to my notice that the decision in Malireddi Ayyareddi V/s. Adusumalli Gopalakrishnayya (1920) 58 I.C. 493 has been confirmed by the Privy Council in Ayyareddi V/s. Gopalakrishnayya (1923) L.R. 51 I.A. 140 : I.L.R. 47 M. 190 : 46 M.L.J. 164 (P.C.). In these circumstances, it is clear that the Lower Appellate Court was entitled to act on the authority of the decision in Malireddi Ayyareddi V/s. Adusumalli Gopalakrislinayya (1920) 58 I.C. 493. It therefore follows that the second point raised by the appellant also fails.