KARANKATTIL HAJI THAMBILAVA ISMAL ROWTHEN S SON CHINNAPPAYAN ALIAS MUHAMMAD ROWTHEN (DEAD) Vs. KARUMANNASSERI GRAMAM PARASURAMA PATTAR S SON NARAYANA PATTAR

JUDGEMENT

(1.) These appeals arise out of an order allowing the execution of a decree for arrears of rent obtained by a usufructuary mortgagee against his mortgagor who is the lessee of the hypotheca. In the execution petition the mortgagee sought to bring to sale the equity of redemption in the mortgaged property in order to realise the decree for arrears of rent. An objection, which was disallowed in the lower appellate Court, was based on Order 34, Rule 14, Civil Procedure Code, to the effect that the decree was in fact a decree for payment of money in satisfaction of a claim arising under the mortgage and that therefore the decree-holder was not entitled to bring the mortgaged property to sale otherwise than by a suit for sale in enforcement of the mortgage.

(2.) The appellant (mortgagor-lessee) mortgaged his property usufructuarily to the respondent by a deed dated 30 November, 1930 and by another deed dated 1 December, 1930, the mortgagee leased the property back to the mortgagor. The mortgage itself provides for redemption on the 1 Kumbham 1107 or any date up to the 30 of that month or during the same period in successive years. The lease is for a period of one year ending on the 1st Kumbham 1107, on which date the lessee undertakes to surrender the property. The liabilities undertaken by the mortgagee in respect of Government revenue, michavaram, etc., under the mortgage deed are the subject of special covenants in the lease deed. The question of the relation between the lease and this mortgage has come up for consideration in a previous litigation arising out of the lease. The rent due under the lease deed was not paid and the lessor-mortgagee filed a small cause suit for the arrears and got a decree which was executed on the original side of the Sub-Court. In execution the decree-holder sought to bring to sale the equity of redemption in the mortgaged property. An objection was preferred on the strength of Order 34, Rule 14, Civil Procedure Code. On this petition the Subordinate Judge passed orders holding that the application for sale was barred under Order 34, Rule 14 and allowed the objection petition. The judgment in this matter is Ex. A. The execution with which we are now concerned was under the decree in a later suit O.S. No. 215 of 1934, the arrears in question being arrears of rent for years subsequent to the year actually covered by the lease. The execution petition was filed in the Court of the District Munsif and the same objection under Order 34, Rule 14 was taken to the application to bring to sale the equity of redemption. It was also objected that the application was barred by res judicata by reason of the former order Ex. A. The trial Court upheld the objection but the learned Subordinate Judge has allowed the execution to proceed.

(3.) It is, I think, well established that when a lease back is part of a transaction of mortgage and is merely a piece of machinery for realising the interest on the mortgage, a suit for rent under that lease would in fact be a suit to realise the interest on the mortgage and under a decree in such a suit the equity of redemption could not be brought to sale unless the suit was actually framed as a suit on the mortgage. It is however contended that this lease must not be regarded as part of the mortgage transaction and that it is an entirely separate transaction on a different date with features which indicate an intention that it should not be merely a portion of the mortgage transaction. The differences upon which the learned Subordinate Judge relies are as follows: - Firstly, there is an interval of one day between the two deeds. Secondly, there is the difference in the period of the lease which is for one year only. Whereas the mortgage is redeemable at the end of the same period or at subsequent dates. Thirdly, there is the fact that the lease provides for the payment of what is called Kattakanam which, I am informed, means an advance paid as security for future rents. It seems to me that the fact that the mortgage was on one day and the lease on the next day has very little bearing on the question whether the lease and the mortgage form part of the same transaction, more especially in the circumstances of the present case wherein the standing crops on the land were to be reaped by the mortgagor, so that both the full possession of the property and the actual effect of the lease were to begin at a subsequent date when the standing crops were harvested. Nor do I think the fact that an advance by way of security for rent was paid necessarily makes the lease something separable from the mortgage. And as to the difference in the term the fact that the lease is expressed as ending on the same date as the date on which the right of redemption begins, is to my mind a clear indication that both the deeds form part of one and the same transaction. Reading these two documents together I have no doubt in fact that they are both part of the same bargain and that the lease was intended to implement the undertakings of the mortgage. Instead of providing for a simple mortgage with payment of interest in cash, the common device was employed of drafting the mortgage as a usufructuary mortgage and making the mortgagor a tenant paying rent. The transaction was in its essence a mortgage in which interest was collected in the shape of rent.