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Judgment
Anantakrishna Aiyar, J.—The first defendant is the appellant before me in this Second Appeal. The plaintiff filed a suit, as originally framed,
for a declaration of the invalidity of a mortgage decree obtained by the first defendant in O.S. No. 53 of 1918 on the file of the Sub-Court,
Kumbakonam. The plaint underwent three processes of amendment and, finally, the plaint, as amended, contained a prayer for subrogation
inasmuch as the plaintiff on 29th March, 1919, discharged in good faith a prior mortgage in favour of one Doraisami Padayachi by Veerabhadra
Padayachi in respect of the properties which the plaintiff alleged he had purchased in Court auction. At the trial of the suit before the first Court this
question of the plaintiff''s right to subrogation was a material question discussed. The Trial. Court decided (tide paragraph 7 of its judgment) that
the plaintiff was entitled to be subrogated to the rights of the prior mortgagee and, consequently, it gave the plaintiff a decree for the amount prayed
for with interest. The plaintiff was also given costs in respect of the said relief granted to him. Appeals were preferred to the Lower Appellate
Court by the plaintiff and the 1st defendant. The plaintiff''s appeal was dismissed and I have no further concern with the same for the purpose of
this second appeal. On the 1st defendant''s appeal, the learned Subordinate Judge, after noticing that the plaint was amended thrice and that the
materials before the Court were not as satisfactory as one would wish, proceeded to discuss the question whether the plaintiff was entitled to
interest and costs decreed to him by the first Court. There was discussion before the Lower Appellate Court whether the 1st defendant was
entitled to raise the further question whether the plaintiff was entitled to subrogation-or not. The learned Subordinate Judge pointed out that, though
the grounds of appeal raised the question, the subject-matter of the appeal was confined to interest and costs allowed to the plaintiff. The 1st
defendant''s pleader then took refuge under the power of the Court under Order 41, Rule 33, Civil Procedure Code, to do justice in the matter.
The Lower Appellate Court accordingly proceeded on the footing that the appeal before it was confined to the question of interest and costs, it
followed the decision of this Court in Malireddi Ayyareddi v. Adusumalli Gopalakrishnayya (1920) 58 I.C. 493 and held that the plaintiff was
entitled to the interest that was awarded to him and that the 1st defendant was not right in saying that the plaintiff should not have been awarded
interest for the period during which he was in possession of the properties as purchaser of the equity of redemption. The 1st defendant has
preferred this second appeal.
The learned Advocate for the appellant raised the question at the beginning of this second appeal, namely, that the Lower Appellate Court was
wrong in not going into the question whether the plaintiff was in the circumstances entitled to be subrogated to the rights of the prior mortgagee,
Doraisami Padayachi. He argued that in the grounds of appeal to the Lower Appellate Court his client specifically raised the question whether the
plaintiff was entitled to any subrogation at all, and, consequently, if there had been any deficit of Court-fee payable on the appeal memorandum, it
was clearly the duty of the Court to direct the deficit Court-fee to be paid and not to decline to allow the pleader for the 1st defendant-appellant to
argue the question of subrogation. On the other hand, the learned Advocate for the respondent drew my attention to the discussion of this question
in paragraph 6 of the judgment of the Lower Appellate Court. Reading that paragraph, it appears to me, that, for reasons best known to him, the
1st defendant''s pleader confined the subject-matter of the appeal to the Lower Appellate Court only to the amount of interest and costs. In fact,
the appeal memorandum to the Lower Appellate Court printed at pages 14 to 16 clearly supports this position. . The valuation of the appeal is Rs.
595-5-10, made up of interest payable on Rs. 800 from the date of Court sale to date of delivery through Court, namely, Rs. 377-5-0 and costs
Rs. 212-13-0. No doubt, during the discussion of the appeal in the Lower Appellate Court it was open to the pleader for the 1st defendant to
explain to the Court the mistake, if any, committed in regard to the valuation of the appeal and the Court-fee paid thereon. If he had offered to
amend the valuation of the appeal and if he had offered to pay any Court-fee that might have to be paid in consequence of the amendment, the
Lower Appellate Court would probably have in the circumstances directed the amendment to be made. But, as the pleader for the 1st defendant
did not consider it proper to take up that attitude, he relied on the power of the Court to pass orders under Order 41, Rule 33, Civil Procedure
Code. The learned Advocate for the appellant before me did not support the attitude taken by the pleader for the 1st defendant in the Lower
Appellate Court, (and I think properly) because Order 41, Rule 33, Civil Procedure Code, is not applicable to the circumstances of the present
case. If I were satisfied that a mistake had been committed in the Lower Appellate Court, quite a different course would be adopted by me; but, in
the absence of an affidavit showing that there was a mistake, and having regard to the discussion in paragraph 6 of the judgment of the Lower
Appellate Court, I think I must proceed to deal with this case on the footing that the appeal to the Lower Appellate Court was only in respect of
interest and costs allowed to the plaintiff.
The second point argued by the learned Advocate for the appellant was with respect to the interest decreed to the plaintiff for the period during
which he was in possession. The learned Subordinate Judge relied on a decision of this Court in Malireddi Ayyareddi v. Adusumalli
Gopalakrishnayya (1920) 58 I.C. 493 and held that, the plaintiff was entitled to interest on the amount of the prior mortgage. He, in fact, decreed it
with interest thereon. The accidental circumstance, that the plaintiff became the purchaser in Court auction by payment of money, and as
compensation therefor he happened to be in possession, does not in any way prejudice his right as a person entitled to the rights of the prior
mortgagee whom he paid up. The learned Advocate for the appellant also argued that the decision in Syed Ibrahim Sahib v. Arumugathayee I.L.R.
(1912) M. 18 supported his position. To certain extent it does; but, as was pointed out by the learned Advocate for the respondent, that decision
was dissented from in Muthammal v. Rasu Pillai ILR (1917) M. 513 the decision in Malireddi Ayyareddi v. Adusumalli Gopalakrishnayya (1920)
58 I.C. 493 following the decision in Mulhamntal v. Razu Pillai I.L.R.(1917) M. 513. Finally, it was brought to my notice that the decision in
Malireddi Ayyareddi v. Adusumalli Gopalakrishnayya (1920) 58 I.C. 493 has been confirmed by the Privy Council in AIR 1924 36 (Privy
Council) . In these circumstances, it is clear that the Lower Appellate Court was entitled to act on the authority of the decision in Malireddi
Ayyareddi v. Adusumalli Gopalakrislinayya (1920) 58 I.C. 493. It therefore follows that the second point raised by the appellant also fails.
The last point raised is as regards costs. It stands on the same footing as the question of interest and should along with it, be held to be equally
unsustainable. It was, however, sought to be argued by the learned Advocate for the appellant, that though in my view of the scope of the appeal
memorandum to the Lower Appellate Court the question of the plaintiff''s right to be subrogated was not raised before the Lower Appellate Court,
yet it was open to him to impugn the correctness of the 1st Court''s decree relating to subrogation in so far as he claimed relief with reference to
interest and costs. In other words, the learned Counsel argued that, though that portion of the decree relating to subrogation became final, the
finality did not attach to the portion of the relief which he claimed in second appeal relating to interest and costs. It seems to me that, it is not open
to the learned Counsel in the circumstances to avoid the effect of the finality attaching to the plaintiff''s right of subrogation. When it is said that the
portion of the decree relating to subrogation has become final, it means that the plaintiff was properly held to have the right to subrogation. If that is
so, how could that portion of the decree relating to subrogation be called in question in the later stage of the very same proceeding in respect of the
question of interest and costs? Either the plaintiff has got the right of subrogation or he has not. If he has, not only is he entitled to the relief on the
footing of subrogation in respect of the principal amount he has paid but he is also entitled to the incidence relating to subrogation, viz., interest on
the money paid by him. If, on the other hand, he is not entitled to subrogation, he could not claim any relief either with respect to principal or
interest. To say that the plaintiff is entitled to subrogation in respect of the principal and to say that he is not entitled to subrogation with respect to
interest, is, I think, an inconsistent position to take. A similar point was sought to be argued in the case reported in Kandasamy Chetty v.
Annamalai Chetty I.L.R.(1904) M. 67 : 15 M.L.J. 402. The plaintiff was given a decree for money in spite of the defendant''s plea that the claim
was barred by limitation. The defendant did not appeal with respect to the whole of the claim decreed. He preferred an appeal only with respect to
a portion of the claim decreed. On the footing that there was no basis for any distinction between the portion appealed against and the portion not
appealed against so far as the question of limitation was concerned, the defendant-appellant was met by the objection that, if the plea of limitation
was good, the whole claim was barred, and in the face of the fact : that a portion of the plaintiff''s claim was held to be not barred and that portion
of the decree had become final, it was not open to the defendant in appeal against only a portion of such a decree to argue the question of
limitation. The learned Judges relied upon two earlier cases in support of the view that they took, namely, Rughu Nath Singh Manku v. Pareshraim
Mahata I.L.R.(1882) C 635 and Alimunnissa Khatoon v. Syed Hossein Ali (1880) Cri.L.R. 267 The question will be different in case the plea of
limitation raised with reference to the appealed portion was different from the aspect of the question of limitation applicable to the unappealed
portion. The principle involved in the decision of this Court in Kandasamy Chetty v. Annamalai Chetty I.L.R.(1904) M. 67 : 1904 15 M.L.J. 402
that it is not open to the defendant in such circumstances to raise the plea of limitation with reference to the portion of the decree appealed against
only, would, apply to the present case also. That principle, as I understand it, is this. If a portion of a decree has become res judicata, then, the rest
of the decree based on same reasoning would also become res judicata even with reference to the other portion of the decree which alone is
brought for review before the Appellate Court. Applying the principle of that decision to the present case, as it was decided that the plaintiff was
entitled to subrogation and as there was no appeal to the Lower Appellate Court from that portion of the decree of the 1st Court, it is not open to
the defendant-appellant to appeal against some portion only of the decree of the 1st Court relating to subrogation and not appeal against the other
portion of the decree in so far as subrogation was allowed and thus call in question the decision of the 1st Court. On this reasoning, it seems to me
that it is not open to the learned Advocate for the appellant to raise this question of subrogation before me in whole or in part.
For all the above reasons, I think the learned Subordinate Judge was right in his decision and I dismiss this Second Appeal with costs.