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Duddu Ellamma Vs. N. Seshadri and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1410 of 1954
Judge
Reported inAIR1959AP492
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 1 - Order 34, Rule 4
AppellantDuddu Ellamma
RespondentN. Seshadri and ors.
Appellant AdvocateA. Kuppu Swami, Adv.
Respondent AdvocateM.S. Rama Chandra Rao and ;M. Krishna Rao, Advs.
DispositionPetition dismissed
Excerpt:
.....mortgage - taking of account by plaintiff is secondary to the suit to realisation of debt - held, suit for sale of hypotheca can be dismissed and the defendant's right to sue for redemption not effected in any manner. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained..........on the same ground. the present case does not appear to be one where the preliminary decree passed by the appellate court fixed the rights of the 1st defendant and contained a direction that if any amount is due to the 1st defendant a decree in her favour should be passed for that amount. the petitioner has not chosen to produce a copy of that decree. he merely relies on the observations made in the course of paragraph 12 of the judgment:--'but if it is found that there is a surplus amount left after satisfying the claims under this mortgage, a decree can be passed in favour of the 1st defendant after collecting proper court fee due on the sum, if any, awarded to her.'this does not mean that a decree in her favour is actually passed. the operative paragraph 13 of the.....
Judgment:
ORDER

Krishna Rao, J.

1. This is a petition by the 1st defendant to revise the order of the District Munsif, Tirupati allowing an application made by the plaintiffs in O.S. No. 396 of 1947 to dismiss their suit as not pressed.

2. The plaintiffs brought the suit for sale in enforcement of a mortgage dated 16-3-1935 executed by the 1st defendant's husband. The lower Court passed a preliminary decree for sale. But, on appeal by the 1st defendant, that decree Was set aside and a preliminary decree for taking of accounts of the profits alleged to have been received by the plaintiffs On the suit properties since the date of the mortgage up to 30-6-1947 was passed, on the ground that the plaintiffs had been in possession of the hypotheca and sale could be ordered only if the mortgage debt has not been liquidated from the profits received.

The appellate court remanded the suit to the lower court for the taking of accounts. Thereafter the lower court appointed a Commissioner but before he started his work the plaintiffs applied for dismissing the suit as not pressed alleging that the same properties had been sold in court auction in another mortgage suit (O.S. No. 81/1947, Sub Court, Chittoor) and that any decree obtained by them would be infructuous. The application was opposed by the 1st defendant.

Her contention was based on the fact that the appellate court had observed in para 12 of the judgment that if on the taking of accounts a surplus was left due to her, a decree could be passed in her favour. She urged that in view of this observation, the plaintiffs could not be allowed to defeat her rights by not pressing the suit.

3. The learned counsel for the petitioner urges that the position in this suit is similar to that in a suit for accounts where a preliminary decree for the taking of accounts has been passed and either party is entitled to a decree for the amount found due on the taking of the accounts. He relies on Annu Avathanigal v. Soma Sundara Avathanigal ILR 54 Mad 654 at p. 666: (AIR 1931 Mad 185 (2) at p. 190) in which Anantakrishna Ayyar, J., observed:

'It is therefore clear that in a 'suit for account'properly so-called the defendant has to render account in the technical sence, and pay the plaintiffthe amount that might be found due to him; it isalso clear that in such a suit the defendant wouldbe entitled to a decree in his favour for any amountthat might be found due to him, as the result ofthe taking of the accounts'.

He also relies on the observation of the Division Bench in Ramalinga Chetty v. Raghunatha Rau, (ILR 20 Mad 418 at p 420) as follows:-

'If it were true that the suit was a suit for an account in the proper sense of that term, then it would follow, according to the decision in Hurrinath Rai v. Krishna Kumar Bakshi ILR 14 Cal 147, which decision illustrates the English practice, that the first defendant would be entitled to have an account taken with a view to obtain a decree for the sum that might be found due to him.' But this decision itself lays down that the question whether a suit is one for accounts should be determined from the actual nature of the plaint. The plaint here merely sought to enforce the mortgage by sale. A mortgagor can as a rule call upon the mortgagee to render an account only when fie seeks redemption except when such redemption has become impossible (see the Law of Mortgage in India by Ghose, 1922 edition, vol. I at page 593).

The 1st defendant being only a mortgagor is not entitled to an account from the plaintiffs in the absence of a suit for redemption by her. 1 am unable to see why her rights should be enlarged merely because the mortgagee has filed a suit for sale. The analogy of a suit for account properly so called has no application.

4. The decision in Abdulla v. Shaffee Muhammad ILR 1945 Mad 625:(AIR 1945 Mad 150) which relates to a suit for dissolution of an alleged partnership and the taking of accounts is distinguishable on the same ground. The present case does not appear to be one where the preliminary decree passed by the appellate court fixed the rights of the 1st defendant and contained a direction that if any amount is due to the 1st defendant a decree in her favour should be passed for that amount. The petitioner has not chosen to produce a copy of that decree. He merely relies on the observations made in the course of paragraph 12 of the judgment:--

'But if it is found that there is a surplus amount left after satisfying the claims under this mortgage, a decree can be passed in favour of the 1st defendant after collecting proper court fee due on the sum, if any, awarded to her.'

This does not mean that a decree in her favour is actually passed. The Operative paragraph 13 of the judgment merely directs the taking of the accounts and does not say that a decree should be passed in favour of whichever party the amounts are found due. As a matter of fact in her written statement, the 1st defendant did not aslo for a decree in her favour for any amount that may be found due to her but prayed for a dismissal of the suit.

A remedy which she did not herself seek could not have been contemplated by the appellate court. The suit was one for sale and the taking of the accounts was ancillary to this relief asked for by the plaintiff. I see no force in the contention that the 1st defendant would have been entitled to a decree in her favour in the suit and is therefore prejudiced by the plaintiffs' exercising their right to withdraw the suit.

5. The learned counsel for the petitioner relies an Doolee Chand v. Omda Khanum, ILR 6 Cal 377 where an order for the payment of the amount due to the mortgagor on the taking of accounts was made in a suit for sale brought by the mortgagee. That was a decision prior to the passing of the Transfer of Property Act. The reliefs admissible to the parties in suits relating to mortgages are now governed by Order XXXIV, C. P. C.

Rules 2 and 4 of Order XXXIV do not provide for any decree being passed in favour of the mortgagor for the amount due to him on taking accounts. The decision in Rahimbhoy Habibhoy v. C.A. Turner, ILR 15 Bom 155 (PC) has no direct bearing on the point under consideration because it was concerned with the liability of a defendant implied in a decree for the taking of accounts and not of a plaintiff to pay the amount due from him.

6. There are no sufficient grounds _for interference in revision. This petition is dismissed with costs.

7. Nothing said in this judgment is however intended to deprive the petitioner of any right to take appropriate proceedings, if any, available to her for redemption,


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