Kunjan Nair Krishnan Menon vs Ouseph Devasia

Vithayathil, J.—Defendants 1 to 5 are the appellants in this second appeal, which arises from an order passed by the District Munsiff of Ernakulam in M.P. No. 498 of 1125 in O.S. No. 490 of 1119. That was a suit for redemption, and a decree for redemption was passed in favour of the plaintiff. When the decree-holder sought to redeem the property the defendants filed M.P. No. 498 of 1125 for stay of the execution of the decree under S. 4, Cl. (b) of Proclamation 6 of 1124 (Cochin).

The Proclamation applies only to certain classes of mortgages, viz., mortgages wherein interest provided for the mortgage amount is less than 40 per cent of the total rent fixed in the mortgage deed. The question for decision was whether the mortgage which was the basis of the decree came within this category. The first Court held that the mortgage in question did not come within the category and that the decree would not fall within the ambit of S. 4(b) of the Proclamation.

The defendants appealed from this order. A preliminary objection was raised by the respondent relating to the maintainability of the appeal. The objection was that the order appealed against was one passed in the exercise of the jurisdiction vested in the Court by virtue of a special statute and that it would not come under S. 47, Civil P.C. Reliance was placed on the Full Bench decision of the Madras High Court in - A.S. Nagappa Chettiar and Another Vs. Annapoorani Achi alias Karuppayi Achi and Another, .

This preliminary objection was upheld by the Additional District Judge and the appeal was dismissed on the ground that it was not maintainable. The learned Judge, therefore, did not go into the merits of the appeal.

I do not think that the view taken by the learned Judge is correct. The decision in A.S. Nagappa Chettiar and Another Vs. Annapoorani Achi alias Karuppayi Achi and Another, came up for consideration before the Privy Council in - (1947) L.R. 74 I.A. 264 (Privy Council) and their Lordships disagreed with view taken in that case. Their Lordships observed:

Their Lordships are not in agreement with the view of the Full Bench of the High Court of Madras. The true rule is that where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the Courts are governed by the ordinary rules of provision applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a Special statute, which does not in terms confer a right of appeal. (See - ''Secy. of State v. Chellikani Rama Rao'', AIR 1916 PC 21 (C) and - AIR 1936 93 (Privy Council) ).

The question was again referred to a Full Bench of the Madras High Court in - M. Desikachariar Vs. Ramachandra Reddiar, and a view different from that taken in A.S. Nagappa Chettiar and Another Vs. Annapoorani Achi alias Karuppayi Achi and Another, was taken in that case. In the circumstances, it cannot be said that A.S. Nagappa Chettiar and Another Vs. Annapoorani Achi alias Karuppayi Achi and Another, has laid down the correct law. The dispute between the parties in this case clearly relates to the execution of the decree.

It, therefore, comes under S. 47, Civil P.C. and the order is appealable as a decree.

I, therefore, set aside the judgment and decree of the lower appellate Court and remand the case to that Court for disposal of the appeal, A.S. No. 50 of 1125, on the merits. The costs of this appeal will be costs in the cause. The second appeal is allowed in the manner stated above.