P.K.L.S. Nachiyappa Chettiar and Another vs Marappa Goundan and Another

Wadsworth, J.—This appeal, to which the civil revision petition is filed as an alternative, arises out of an amended decree passed on an

application u/s 19 of Act IV of 1938. The suit was filed on a security bond executed by the first defendant for Rs. 5,000. The debt covered by the

bond had its origin in two earlier promissory notes, a matter of some importance, since the bond itself is, dated 21st December, 1932, i.e., after

the date specified in Section 8 of Act IV of 1938. The sixth defendant in 1935 purchased the lands covered by the bond, undertaking to pay a sum

of Rs. 8,500 towards the bond, but he paid nothing. The decree was passed in 1936, and after the Act came into force the sixth defendant filed an

application to scale down the decree.

The only contentions which seem to have been pressed in the lower Court related to the question whether the Act was ultra vires and whether

the decree against the sixth defendant was one which could not be scaled down with reference to Section 10 (2) (if) of the Act. Both these points

were also taken in the appeal and both are covered by authorities adverse to the plaintiff-appellant. The appellant has, however, in the arguments

before us raised two contentions which are not mentioned in the memorandum of appeal and are not dealt with in the lower Court''s order. The

first contention is, that although on the authority of Perianna Goundan Vs. Sellappa Goundan and Others, the sixth defendant may be deemed to be

under a property liability, the date of which is fixed with reference to the date of. the original bond, the sixth defendant had nothing to do with the

antecedent promissory notes nor had the property which he purchased anything to do with those notes and therefore, the sixth defendant is only

entitled to scale down the decree with reference to the suit bond and cannot go behind it. We had to deal in Venkatammal Vs. K.V. Ramaswami

Aiyar and Others, with a case in which the purchaser of property bound by a mortgage successfully claim-ed the right to scale down his debt, not

merely with reference to the actual suit mortgage, but also with reference to an earlier mortgage on the same property by the same mortgagor,

discharged by the later mortgage on which the suit was filed. But the decision in that case is only authority for the position that when a purchaser

seeks to scale down what has been referred to as a ""property liability"" under a mortgage, he can go back to an antecedent mortgage by the same

mortgagor over the same properties, the date of the property liability being regarded as the date when the property originally became bound by the

antecedent debt. The position is, however, quite different when the mortgage which binds the property is traced back not to any antecedent

mortgage on the same property, but to a simple money debt due from the mortgagor. That money debt cannot in any sense be-regarded as binding

the property purchased by the appellant and it is clearly a debt due from somebody other than the person who claims to scale down the suit

liability.

In our view, the sixth defendant in the present case cannot claim that his liability is a renewal of the previous money debt due from his mortgagor.

It follows, therefore, that the lower Court is wrong in scaling down this debt with reference to the antecedent promissory notes. The plaintiff is

therefore entitled"" to a decree for the principal amount of the bond Rs. 5,000 with interest at 5 per cent, u/s 9 of the Act from the date of the bond,

21st December,. 1932 to 22nd March, 1938, the date of the commencement of the Act and thereafter at 6 per cent.

There, is a further point which has been argued though not raised in the memorandum of appeal. It. appears from the calculation memoranda

filed by both sides that the plaintiff has) since the suit was filed, made two payments one of Rs. 44-7-3 and the other of Rs. 156-2-2 in discharge

of a liability due from the mortgagor on account of land improvements loans taken from the Government. The joint memo of calculation filed in the

lower Court specifically includes the loans paid by the plaintiff in the amount which the plaintiff shall be entitled to recover. By some oversight these

two payments have been omitted from the lower Court''s decree. The decree will, therefore, be amended by the addition of these two amounts

with interest at 5 per cent. from the date on which they were paid to 22nd March, 1938, and thereafter at 6 per cent. It is represented that the

plaintiff has made further payments towards these loans in order to preserve the property from sale at the instance of the Government. We cannot

go into the question of these further payments about which we have no information and which are not covered by the joint memo in the lower

Court. The plaintiff must seek his remedy separately with reference to these amounts.

In the matter of costs in the appeal, the appellant has succeeded only to a fraction of the extent covered by his appeal and his success has been

on points which he did not raise in his memorandum of appeal and of which the respondent had little notice. In- these circumstances, we think it

proper to order that the appellant shall pay to the respondent costs proportionate to the extent of his failure in this appeal and, shall bear his own

costs. The civil revision petition is dismissed. No order for costs therein. Appeal allowed in part and petition dismissed.