Sundarammal and another vs Arumugha Padayachi

Ganapatia Pillai, J.—This revision petition is directed against an order of the Subordinate Judge, Salem, in I.A. No. 664 of 1961 in O.S.

No. 1 of 1944. The proceeding before the learned Judge in the Court below was an application to amend the final decree dated 21st September

1948. The petitioner in the lower Court was the 4th defendant in a mortgage suit. The property mortgaged stood in the name of one Ammakannu

Ammal, whose son''s son is the petitioner, the fourth defendant. The property was mortgaged by Ammakannu Ammal and by her son jointly to the

mortgagee. By the time the mortgage suit was brought Ammakannu Ammal was dead. The parties impleaded to the mortgage suit were

Ammakannu Ammal''s son, who was the co-mortgagor, defendant 1, his three sons, defendants 2, 3 and 4, and his two daughters, defendants 5

and 6. Defendant 4 alone claimed the hypotheca under a Will executed by Ammakannu Ammal, because, according to him, by that Will the

property has been bequeathed by Ammakannu Ammal to him solely. The mortgagee, to be on the safe aside, did not define or attempt to de-limit

the interest of the co-mortgagors. He therefore asked for the usual mortgage decree. It was declared by the preliminary decree that the 4th

defendant, who was an agriculturist (Ammakannu Ammal herself being an agriculturist) was liable to pay only a scaled down amount in accordance

with the scaling down procedure prescribed by Act IV of 1938, while defendants 1 to 3, who are non-agriculturists, were liable to pay the full

amount due under the mortgage. Against that preliminary decree, an appeal was taken by the mortgagee to this Court, but that appeal was not

successful. The contention urged in the appeal before this Court was that the scaling down in favour of the 4th defendant was wrong and that a

decree should have been passed for the full amount against him also. In urging this contention it was not contended that the property belonged only

to the first defendant and the members of his joint family, Ammakannu Ammal having no title at all despite the property standing in her name. When

the appeal in the High Court failed, a final decree was passed by the lower Court"". The grievance of the 4th defendant against the final decree was

that it did not give effect to the clause in the preliminary decree which directed redemption on payment of the smaller amount by the 4th defendant.

Without keeping this distinction in mind, it was complained that the final decree proceeded to order sale of the mortgaged property on failure to

pay the larger amount due. This application, out of which the present revision petition arises, was, therefore, made by the 4th defendant for the

amendment of the final decree. This wag resisted by the decree-holder-respondent. The learned Judge amended the decree by directing deletion of

Cl. 3 of the final decree and re-drafting of Cl. 2. In effect, the learned Judge has directed by the final decree two sales, one for the amount due by

the agriculturist debtors, defendants 4, 5 and 6 and the other by the non-agriculturist debtors, defendants 1 to 3, and he has directed both the sales

to take place on the same day. Mr. Swaminatha Iyer, appearing for the petitioner, contends that the lower Court had no jurisdiction to amend the

decree after it had become final and the relief now asked for should have been obtained in the appeal against the preliminary decree. At the stage

when the appeal against the preliminary decree was pending, there was no need to ask for any relief in regard to this matter, because the final

decree must necessarily correspond to the preliminary decree as settled by the appellate order of this Court. I do not see any force in this

objection.

The second objection of Mr. Swaminathan is that by payment of the smaller scaled down amount, the debt is not extinguished and therefore the

final decree for sale as it stood was proper. In support of this contention, be cited the decision of the Supreme Court in Ramaswami Aiyangar v.

Kailasa Thevar (1951) 1 M.L.J. 560 = 64 L.W. 520 (S.C.). That decision ruled that though under the general law a mortgage debt is one and

indivisible, exceptions to this rule should be recognised having regard to the provisions of the Madras Agriculturists Relief Act. The decision

therefore provided for a mortgage decree for sale being drawn up in such a manner as to allow redemption by the non-agriculturist mortgagor by

payment of the full amount of the debt due. The further question arose whether by payment of the smaller amount by the agriculturist debtor the

debt was extinguished. A Full Bench of the Court in Venkatavaradanulu v. Ramayya ILR 1954 Mad. 158 (F.B.), answered this question in the

negative. That decision makes it clear that by redemption by the mortgagor who was an agriculturist the debt as such was not extinguished till the

amount due and payable by the non-agriculturist mortgagor as declared by the preliminary decree for the mortgage debt was paid up.

Mr. Swaminatha Iyer next relied upon a Bench decision of this Court in Ammalu Ammal Vs. N. Samalam Iyer and Others, . There it was ruled

that an agriculturist mortgagor was entitled to redeem his or her share of the mortgage or interest therein and could not redeem the entire mortgage

by paying the scaled down amount. Impliedly, this enables Mr. Swaminatha Iyer to argue that in passing a mortgage decree, the Court is bound to

indicate what was the interest in the hypotheca which the agriculturist mortgagor was entitled to redeem and what was the interest remaining for the

non-agriculturist mortgagor to redeem. The Bench decision envisages that position. In view of this state of the law, which is binding on me, the

question for consideration now is whether the order passed by the Subordinate Judge deserves to be interfered with.

It is clear that there is no finding anywhere in the suit as to what is the share in the hypotheca which the agriculturist mortgagors were entitled to,

nor has the petitioner pressed for such a finding in the suit itself. Indeed, the stand taken in the appeal against the preliminary decree negatived the

present contention that Ammakannu had no interest at all in the hyptotheca. Therefore, it appears to me rather too late to direct an enquiry into this

question after the preliminary and final decrees have been passed on the footing that all the mortgagors were entitled to some interest in the

hypotheca. The parties having gone to trial on that basis, it would serve no purpose to direct any enquiry now as to the extent of the interest which

the 4th defendant has in the hypotheca. The order made by the learned Subordinate Judge directing two sales on the same day, each sale being

concerned with the right, title and interest of the agriculturist mortgagor as also the non-agriculturist mortgagor, appears to me to be correct under

the circumstances of this case, so that any person who hereafter purchases the right, title and interest of the non-agriculturist mortgagor would have

to work out his remedy by a separate suit to find out what that interest is and to recover possession thereof. That unfortunate position cannot be

helped in view of the stalemate which this litigation has reached after so many years of strife. The revision petition is therefore dismissed. There will

however be no order as to costs.