Kochu Cherukkan Madhvan vs Kochupennu Chakki and Another

Gangadhara Menon, J.—This is a second appeal by Defendant 1 from the judgment and decree of the learned Second Judge of Trivandrum in A.S. 295 of 1121 decreeing the suit in reversal of the decree of the trial Court.

The plaint schedule properties belonged to one Velayudhan Asari. In 1095 he hypothecated them to one Kali Kurumpa. After the death of Velayudhan Asari his heirs hypothecated the properties to Plaintiff 2. Subsequently in 1096 Plaintiff 1 the wife of Plaintiff 2 took a sale of the properties with recital to payoff both the hypothecation charges. Thereafter Plaintiffs 1 and 2 jointly executed a hypothecation bond in favour of Defendant 1. He sued-them and obtained a decree in O.S. 1132 of 1109 charged on the plaint properties and purchased the properties in Court auction. Immediately after the Court sale, on 24-4-1111 the Plaintiffs filed a petition to have it set aside under Order 21, Rule 87. In the meantime while the petition for setting aside the sale was pending, Kali Kurumpa the hypothecatee of 1035 who had obtained a decree in O.S. 1482 of 1108 charged on the properties brought them to sale. Plaintiff 2 on behalf'' of Plaintiff 1 paid the decree amount and discharged that debt. Subsequently the petition filed by the present Plaintiffs in O.S. 1132 of 1109 under Order 21, Rule 87 was dismissed and the plaint properties were delivered over to Defendant 1. The Plaintiffs have thereafter brought the present suit for recovery of the amount that was paid in satisfaction of the decree debt in O.S. 1482 of 1108 with interest thereon charged on the plaint schedule properties. Defendant 1 resisted the claim. The trial Court dismissed the suit. In appeal the learned Judge reversed the decree and allowed the suit on the finding that the Plaintiffs by the payment of the decree debt in O.S. 1482 of 1108 are subrogated to the position of the prior hypothecatee and are therefore entitled to a decree for the amount charged on the properties. It is admitted that the decree debt based on the prior hypothecation bond of 1095 in favour of Kali Kurumpa was discharged by the Plaintiffs as pleaded by them. Therefore the only, question for decision in this appeal is whether Plaintiff 1 is subrogated to the position of the hypothecatee of 1095 by virtue of the payment made. There can be no doubt that the Plaintiffs had an interest in the properties when the payment was made, for at that time the petition to set aside the sale in O.S. 1132 of 1109 was pending and the sale had not been confirmed. They were not therefore mere volunteers as contended for by the Appellant. That the sale in O.S. 1132 of 1109 was subject to the prior charge in favour of Kali Kurumpa is also clear from Ex. C. proclamation schedule in O.S. 1132 of 1109 which expressly excludes that prior charge. It is contended by the learned advocate for the Appellant that in any event there had been a merger and the prior charge cannot be deemed to have been kept alive. As has been observed by their Lordships of the Privy Council in the case reported in-Gokuldas v. Puranmal 10 Cal 1035 at p. 1046 (PC) (A);

The obvious question to ask in the interests of justice, equity and good conscience, is what was the intention of the party paying off the charge. He had a right to extinguish it and a right to keep it alive. What was his intention? If there is no express evidence of it, what intention should be ascribed to him? The ordinary rule is that a man having a right to act in either of two ways, shall be assumed to have acted according to his interest.

There is nothing in the case to show that the Plaintiffs either expressly or impliedly indicated any intention to extinguish the charge. Therefore they should be deemed to have adopted the course which was to their interest namely to keep the prior charge alive. Plaintiff 1 is thus subrogated to the rights of the prior hypothecatee whose debt she discharged. Therefore the conclusion of the learned Judge that the Plaintiffs are entitled to recover the amount under the hypothecation of 1095 together with the interest amounting to a moiety charged on the plaint properties is not open to question.

The appeal is groundless and is dismissed with costs.