Ouseph vs Parameswaran and Another

Gangadhara Menon, J.—The deft, is the applt.

This second appeal is directed against the judgment of the Dist. J. of Anjikaimal in A. S. 125 of 1123 setting aside the decree of the Dist. Munsiff of Cochin in 0. S. No. 62 of 1122 & remitting the case for trial. The suit was for redemption of item 4 in Ex. I mtge. One of the pleas raised by the deft, was that the suit being only for partial redemption is not maintainable. The learned Munsiff upheld this contention & dismissed the suit. In appeal the learned Judge found that in the circumstances of the case the partial redemption sought for can be allowed & set aside the decree & remanded the case for consideration of the other issues raised and disposal in accordance with law.

The only question that arises for decision in this second appeal is whether the suit for partial redemption is maintainable. Exhibit I is the mtge. dated 26-10-1109 for the plaint & other properties. It is executed by Kochunni on behalf of himself & also as guardian of the minor children of deceased Lekshmi as item No. 2 included therein was obtained by Lekshmi under ex. D-3 partition & on her death devolved on her children the pltfs. and their two sisters Thulasi Padmavathy all minors then. The present pltfs. and their sisters sued in O. S. 341 of 1114 of the Cochin Munsiff''s Ct. for the recovery of item No. 2 and obtained a decree. Thereafter they sold item No. 2 to the deft, under Ex. III dated 13-2-118. In execution of the money portion of the decree the DBS brought Kochunni''s rights in the plaint properly, i.e. in item No. 4 in Ex. I mtge. to sale & purchased it in Ct auction. Thulasi & Padmavathy assigned their rights over the plaint property as per the purchase in Ct. auction to pltf. The pltfs. have, therefore, brought the present suit for redemption of the plaint item.

Under ex. III the deft, mtgee. has purchased one of the properties mortgaged to him under Ex. I. It is evident from the wording in Ex III that the integrity of the mtge. has been split up. The following provision in Ex. III makes this clear: [The provision in Malyalam]. The document no, 1400 refd. to in the above extract is Ex. I & item No. 1 mentioned there in as item No. 2 in Ex. I. In the light of the above provision in Ex. III it is idle to contend that the integrity of the mtge. is still maintained. The decision in Krishna Iyer v. Susai Reddiar AIR 1940 Mad. 498 : 190 I. C. 828, refd. on by the learned Advocate for the applt. has no application to the facts of the present, case. The judgment of the lower appellate Ct. is correct and does not call for any interference.

The appeal is groundless & is dismissed with costs.