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Somanatha Swayi and ors. Vs. Karji Ananta Patnaik and ors - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1932Mad18
AppellantSomanatha Swayi and ors.
RespondentKarji Ananta Patnaik and ors
Cases ReferredG. Brahmayya v. P. Subbarayudu
Excerpt:
- .....[1917] 40 mad. 968 that a mortgagee voluntarily releasing from the suit a portion of the mortgaged property is not bound to abate a proportionate part of the debt and is entitled to recover the whole of the mortgage amount from any portion of the mortgagad property. this decision supports the contention urged by the appellant's learned advocate. but it is argued by mr ramaswami ayyar, the learned advocate for the respondents, that full effect should not be given to this decision in this particular case having regard to the fact that the plaintiffs-mortgagees according to their own statement have become the owners of items 3 and 4. under ths exception to section 60, t. p. act, the mortgage having been split the mortgagee is entitled to claim only a proportionate amount of the.....
Judgment:

Madhavan Nair, J.

1. The plaintiffs are the appellants and mortgagees of property consisting of four items. The first item has-been subsequently sold to defendant 3, the contesting respondent in the case. Items 3 and 4 have come into the possession of the plaintiffs according to their own case. In the lower Court the plaintiffs sought to recover the mortgage amount which was calculated at Rs. 250 from item 1 alone. The lower Court gave a decree against items 1, 3 and 4 with a direction that items 3 and 4 will be proceeded against first.

2. In second appeal Mr. Venkatachariar argues that the plaintiffs are entitled to get a decree against item 1 alone they having the right to exonerate the other items in the suit. It was held by a Full Bench in Perumal Pillai v. Bamanchettiar [1917] 40 Mad. 968 that a mortgagee voluntarily releasing from the suit a portion of the mortgaged property is not bound to abate a proportionate part of the debt and is entitled to recover the whole of the mortgage amount from any portion of the mortgagad property. This decision supports the contention urged by the appellant's learned advocate. But it is argued by Mr Ramaswami Ayyar, the learned advocate for the respondents, that full effect should not be given to this decision in this particular case having regard to the fact that the plaintiffs-mortgagees according to their own statement have become the owners of items 3 and 4. Under ths exception to Section 60, T. P. Act, the mortgage having been split the mortgagee is entitled to claim only a proportionate amount of the mortgage money. Autherity for this position may be found in Appayya v. Rangayya [1908] 31 Mad. 419: see also G. Brahmayya v. P. Subbarayudu : AIR1931Mad552 . Applying the principle enunciated in these cases the plaintiffs can recover only so much of the mortgage debt as bears the same proportion to the whole of the mortgage as the value of item 1 bears to the value of the whole of the property. Before they get a decree the exact amount that they will be entitled to on this principle will have to be determined by the lower Court. If the amount is above Rs. 250 they can get a decree only for Rs. 250. If it is less of course, they will be entitled only to that loss amount.

3. The result is that the decree of the lower appellate Court is set aside and the appeal is remanded to the lower Court for passing a decree in favour of the plaintiffs against item 1 in accordance with the directions given in this judgment. The appellants will be entitled to their costs throughout.

4. In conclusion I must say that I am much obliged to Mr. Ramaswami Ayyar who at my request argued the case on behalf of the respondents who are unrepresented. He has argued it with great ability and his arguments have been of considerable help in deciding the second appeal.


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