Ayipuzha Parvathi Amma vs Subramanian Pattar

Patanjali Sastri, J.—This is a petition to revise an order of the Subordinate Judge of Tellicherry dismissing ftie petitioner''s application u/s 23

of the Madras Agriculturists Relief Act to set aside an auction sale of certain immovable properties of which she claimed to be the owner.

The facts of the case may be briefly stated. The respondent obtained a mortgage decree for Rs. 3,083 against the petitioner and others on a

mortgage executed in his favour on 6th August, 1931, by one Krishnan Nambi. The mortgage comprised eight items of immovable properties of

which he sold items 5 to 8 and part of item 4 under Ex. A and items 1 and 2 under Ex. B, to one Vishnu Nambudri on 9th August, 1931. He also

made a gift of item 3 to his daughter, the petitioner herein, on the same date. The petitioner sued Vishnu Nambudri in O.S. No. 464 of 1934 on the

file of the District Munsif''s Court of Taliparamba for recovery of possession of items 1, 2 and 4 to 8, alleging that these properties were sold to

him by her father as a benamidar for herself. The suit was decreed by the trial Court, but on appeal it was held that though Vishnu Nambudri took

the sale as a benamidar, the petitioner failed to establish that he was a benamidar for her''and the suit was accordingly dismissed. With a view to

remove the cloud on the petitioner''s title arising. from this decision, Krishnan Nambi executed on 24th March, 1937, a release deed purporting to

release all his rights in items 1, 2 and 4 to 8 in favour of the petitioner. The respondent instituted O.S. No. 2 of 1936 in the lower Court to enforce

his mortgage of 1931 impleading Krishnan Nambi the mortgagor as the first defendant, the petitioner as the second defendant and certain others

claiming interest in some of the mortgaged items, and obtained a preliminary decree on 22nd December, 1936 and a final decree for sale on 17th

August, 1937, for Rs. 3,083 as stated already. In execution of this decree, the mortgaged properties were sold in one lot on 10th March, 1938.

With a view to have the decree scaled down under the Madras Agriculturists Relief Act which came into force soon after, the petitioner applied to

the Court below on 9th April, 1938, for setting aside the auction sale. The learned Subordinate Judge in dismissing the application held (1) that

having regard to the terms of the preliminary and final decrees in the suit, the petitioner was not a judgment-debtor and therefore was not entitled to

apply u/s 23 of the Act; (2) that the petitioner failed to prove that she had any interest in the hypotheca except item 3 which she obtained under the

gift deed of her father; and (3) that the petitioner was excluded from the benefits of the Act by reasoh of Section 10(2)(ii) so far as items 1 and 2

comprised in the sale deed Ex. B were concerned as the purchase money due in respect of that sale which the vendee was directed to pay to the

respondent in discharge of the mortgage remained unpaid and there was a charge for that liability u/s 55(4)(b) of the Transfer of Property Act. All

these conclusions were canvassed before us in this revision petition.

On the first point, we are clearly of opinion that the petitioner is entitled to apply u/s 23 of the Act. According to the decision in Perianna

Goundan Vs. Sellappa Goundan and Others, , the liability of the petitioner as a subsequent alienee of part of the hypotheca to discharge the

mortgage is a '' debt'' liable to be scaled down under the provisions of the Act. The respondent''s learned Counsel however urged that the

petitioner was not a '' judgment-debtor '' within the meaning of Section 23 as neither the preliminary nor the final decree contained any direction

that the second defendant should pay the amount due to the respondent. It is true that para. 2(1) of the preliminary decree directs only the first

defendant the mortgagor to pay into Court on or before the date fixed the sum decreed to the respondent, but para. 4, after providing that the

money realised by sale of the hypotheca less the expenses of the sale, should be applied in payment of the amount decreed to the respondent

directs that the balance, if any, shall be paid to the first defendant '' or other persons entitled to receive the same'', and para. 5 provides that the

parties shall have liberty to apply to the Court from time to time as they may have occasion and on such application or otherwise the Court may

give such directions as it thinks fit.'' Again, the final decree recites that the payment directed by the preliminary decree was not made by the first

defendant or any person on his behalf or ''any other person entitled to redeem the mortgage,'' and contains a provision in para. 2 that the balance, if

any, of the sale proceeds after the satisfaction of the plaintiff''s debt be paid to the first defendant ''or other persons entitled to receive the same. It

cannot for a moment be disputed that the petitioner was a person entitled to redeem the respondent''s mortgage u/s 91 of the Transfer of Property

Act, and it is obvious that she was impleaded by the respondent in the mortgage suit with a view to bind her interest in the hypotheca by the

decree. It was said that the respondent did not admit her right in the hypotheca but impleaded her and other alienees in the plaint as setting up

pretensions to certain rights in the property subsequent to the mortgage."" The mortgagee was not interested in admitting or denying the rights of

subsequent alienees in the mortgaged properties as such rights, whatever they might be, were all subject to the mortgage and, indeed, any dispute

regarding such rights would be outside the scope of the mortgage suit. As a matter of fact, none of the defendants raised any dispute regarding the

petitioner''s right to the third item under the gift of her father. It was because of the interest she claimed in the hypotheca that she also raised a

contest in the suit as to the amount payable to the respondent. In these circumstances, it is clear that her interest in the hypotheca, whatever its

extent, was bound, by the decree and she was a person entitled to redeem the respondent''s mortgage or, if there was no redemption, to receive

the balance, if any, of the sale proceeds after payment of the decree amount according to the extent of her interest in the hypbtheea. We are

therefore of opinion that the petitioner is a judgment-debtor as defined in Section 2(10) of the Code of Civil Procedure, assuming that the term, not

having been otherwise defined, is to be understood in no wider sense in the Madras Act IV of 1938.

The question next arises whether the petitioner is entitled to have the sale not only of item 3 but of the other items in which she claims to be

beneficially interested set aside. Learned Counsel for the petitioner argued that by reason of. the release deed executed by her father after the

termination of her suit against her alleged benamidar, the petitioner''s title to items 1, 2 and 4 to 8 also must be deemed to have been perfected,

and that therefore she was entitled to have the sale of all the items set aside. It is unnecessary, however, to decide the question whether the release

deed (Ex. G) would be sufficient to vest in the petitioner the title to these properties, as we are of opinion that even apart from her right to these

items, she is entitled to have the sale of all the items set aside by reason of her interest in item 3 which was never in dispute. As already observed,

all the eight items were sold in a single lot for a single price, and in the case of such sale, it is clear from the terms of Sections 23 and 24 oft the Act

that the sale has to be set aside in its entirety and the purchase money repaid to the purchaser, even though the applicant may be interested in only

one of the items comprised in the sale. It is also unnecessary in this view to consider whether the petitioner is disentitled to the benefits of the Act

by reason of Section 10(ii) as there can be no question of a charge u/s 55(4) of the Transfer of Property Act in respect of item 3.

The Civil Revision Petition is therefore allowed and the application (E.A. No. 181 of 1938) is remitted to the lower Court for scaling down the

debt in accordance with the provisions of the Act. The petitioner will have her costs here and in the'' Court below.