Narayana Kurup vs Rama Panicker

Vithayathil, J.—Plaintiff is the revision Petitioner. The suit is for redemption of a usufructuary mortgage (Ex. E) dated 29-2-1087 for Rs. 300 and a puravaipa (Ex. F) dated 2-11-1089 for Rs. 50. The rent fixed in Ex. E is Rs. 25. Out of this, the morgagee is directed to appropriate Rs. 18 as interest on the mortgage amount and to pay the balance amount of Rs. 7 to the mortgagor. In the puravaipa, Ex. F, the interest on the puravaipa amount is fixed as Rs. 5 and the mortgagee is directed to appropriate this amount out of the Rs. 7 that was payable to the mortgagor under Ex. E. In the puravaipa document the mortgagor has undertaken to pay both the mortgage amount and the puravaipa amount together and to redeem the property on payment of both the amounts. The trial Court gave the Plaintiff a decree for redemption of the mortgage and puravaipa on payment of the amounts covered by the two documents.

The Defendant filed an appeal from this decree and while the appeal was pending; Cochin Proclamation 6 of 1124 amending Cochin Verumpattamdars Act, 8 of 1118 was promulgated. On the basis of that Proclamation, the Defendant applied for stay of the appeal. The Plaintiff contended that the Proclamation would not apply to the suit. The Court below held, that the Proclamation applied to the puravaipa and that since the mortgage could not be separately redeemed the appeal should be stayed u/s 4(2) of the Proclamation. The Revision is from this order.

A preliminary objection was raised on behalf of the Respondent to the effect that the order of the Court below has the force of a decree, that it is appealable and that, therefore, the revision petition is not maintainable. We do not think that the order comes within the definition of a decree Decree is defined in Section 2(2) CPC as

the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.

The order in question has not determined the rights of the parties with regard to a matter in controversy in the suit. The order has only determined the question whether the suit should be tried or not. Matters in controversy in the suit can be determined only when the suit is tried. So far as the present controversy is concerned, it only relates to the question whether the disposal of the appeal should be stayed or not under Proclamation 6 of 1124. For deciding that question the Court had to consider the nature of the transaction which is the basis of the suit. But the determination of that question cannot amount to a decision of a matter in controversy in the suit itself. We are, therefore, of opinion that the order in question does not come within the definition of ''decree'' and that, therefore, the order is not appealable.

With regard to the merits of the petitions the question for consideration is whether the suit comes'' within the ambit of Section 4(2) of Proclamation 6 of 1124. Section 4 reads thus:

(1) Notwithstanding anything contained in any other law for the time being in force:

(a) no suit for redemption of a mortgage with possession executed on or after the first day of Chingom 1111 shall be maintained in Our Courts where the property comprised in the mortgage was outstanding with the mortgagor or his predecessor-in-interest on verumpattam immediately prior to the mortgage with possession; and

(b) no suit for the redemption of a mortgage with possession shall be maintainable in Our Courts where the interest on the mortgage amount is less than 40 per cent, of the total rent fixed in the mortgage document and where the property comprised in the mortgage consists mainly of agricultural land other than lands planted with rubber, coffee, tea or cashew.

(2) All suits, appeals, revisions, reviews and proceedings in execution of a decree for the redemption of mortgages of the nature specified in Sub-section (1) of this section shall be stayed by Our Courts in so far only as they relate to the relief for redemption.

(3) Nothing contained in this section shall preclude the mortgagor from instituting a suit for the recovery of rent and puravaka dues for which the mortgagee shall be liable.

It is admitted that Sub-section 1(a) does not apply to this case. The question to be decided is whether Sub-section (1) will apply to the case. It is not disputed that the property comprised in Exs. E and F consists of agricultural land to which the Sub-section will apply. The dispute between the parties relates to the question whether the interest on the mortgage amount is less than 40 per cent of the total rent fixed in the mortgage document. If the suit is regarded as one for redeeming Ex. E alone the interest on the mortgage amount will be more than 40 per cent of the rent fixed in the mortgage deed. But in view of the provision in Ex. F that both the mortgage and the puravaipa amounts should be paid together by the mortgagor for redeeming the property the Plaintiff will not be entitled to redeem Ex. E alone. Neither can he redeem Ex. F alone payment of the amount covered by that document. It is, therefore, a case in which both the mortgage and the puravaipa have become consolidated. The Plaintiff can redeem the property only on payment of the consolidated amount. The suit has, therefore, to be deemed to be one for redeeming the consolidated mortgage covered by Exs. E and F. In this view of the case, the mortgage amount should be taken to be Rs. 350. Interest on this amount will be Rs. 23/-. The rent finest in the document being Rs. 25/- the interest the mortgage amount will be more than 40 per cent of the rent. In that case the suit will not come within the ambit of Section 4(1)(b) of the Proclamation.

The learned District Judge, while holding that the mortgage Ex. E is not redeemable separately from the puravaipa, Ex. F, treated the puravaipa as a separate transaction for the purpose of the applicability of Section 4(1)(b) of the Proclamation, and, since the interest on that amount is only Rs. 5 while the total rent of the property is Rs. 25, held that the interest on the puravaipa amount is less than 40 per cent of the rent. Therefore, the learned Judge held that the puravaipa came within the ambit of Section 4(1)(b) of the Proclamation.

We do not think that this view of the learned Judge is correct. If the suit is regarded as one for redeeming a consolidated mortgage, the mortgage amount that should be taken into account for the purpose of determining the applicability of Section 4(1)(b) of the Proclamation is the total amount covered by the mortgage and puravaipa and not that covered by the puravaipa alone.

There is Anr. way of looking at the question. Out of the total rent of Rs. 25 fixed in Ex. E Rs. 18 has to be appropriated towards the interest on the amount covered by that document. The balance rent will be only Rs. 7. Therefore, so far as the puravaipa Ex. F is concerned, this amount alone should be taken to be the rent of the property. It is out of this amount that the mortgagee is directed to appropriate Rs. 5 towards interest on the puravaipa amount. If calculation is made on that basis it will be seen that the interest on the puravaipa amount is more than 40 per cent of the rent. Thus in any view of the case the suit will not come within the ambit of Section 4(1)(b) of the Proclamation.

We, therefore, set aside the order of the'' Court below and allow the revision petition with costs.