Pallikkondi Matha vs Kaniyarakkal Natuvite Valappil Mayan Kunhi and Another

Panchapakesa Ayyar, J.—The civil miscellaneous second appeal raises an interesting question of law. Respondent 1, Mayan Kunhi,

usufructuary mortgaged certain properties to the decree-holder, Matha. Respondent 2 Kumaran, bought the equity of redemption from respondent

1, and also got a lease back of the property from the usufructuary mortgagee, Matha. Finally Matha filed a suit, O. S. No. 182 of 1933, and got a

preliminary decree on 17-4-1936. There was an application by Kumaran for scaling down that decree under the Madras Agriculturists Relief Act.

By consent of all the parties, the decree amount was scaled down, on 4-7-1947 in I. A. No. 3264 of 1946. The mortgage amount was admitted

to be Rs. 400, and the arrears of rent to be Rs. 8 for the year 1933, Rs. 64 for 1934-35, and Rs. 21-5-5 for the subsequent period till 11-7-

1935. The amended decree was passed for the composite amount arrived at thus. When it was sought to be executed by Matha Kumaran

contended that the decree was also for arrears of rent and involved his eviction from the holding, and therefore was liable to be stayed under the

Act XVII [17] of 1946. The District Munsif of Cannanore upheld that contention, and dismissed Matha''s petition R. E. P. No. 222 of 1947,

without costs.

Matha took the matter in appeal to the District Judge, North Malabar. The District Judge, by his judgment dated 30-7-1948, dismissing A. S.

No. 655 of 1947, held that, though the mortgage decree consisted of the admitted mortgage amount of Rs. 400, and some rent amounts, it

became a composite decree by adding up all these amounts, including the lease amounts, and so fell within the mischief of Madras Act XVII [17]

of 1946, and compelled the Court to stay such an execution proceeding.

Though this is a hard case for the decree-holder, the reasoning of the lower appellate Court cannot be said to be wrong. The learned counsel for

Kumaran urged before me that to divide the mortgage amount in this composite decree from the lease amount would be in effect to substitute two

decrees for one, and that, in the absence of specific provisions, like Section 14 , Madras Agriculturists Relief Act, enabling a Court to divide a

decree into two parts, the Court would not have the said power, and the decree, being one and indivisible, will fall within the mischief of Act XVII

[17] of 1946 and the stay given there. I agree.

So the only modification I make in the lower appellate Court''s order is to delete the provision directing the decree-holder to pay Kumaran''s

costs. It is the act of Kumaran himself, by naming the mortgage amount separately payable to the decree-holder, that added to the confusion. I

accordingly delete the order of the lower Court making Matha give Kumaran''s costs, and confirm it in all other respects. This civil miscellaneous

second appeal also is dismissed otherwise. The parties are directed to bear their own costs. No leave.