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Navunni and ors. Vs. Ramasawmy Patter and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in52Ind.Cas.738
AppellantNavunni and ors.
RespondentRamasawmy Patter and anr.
Cases ReferredAbdul Hashm Sahib v. Kader Batcha Sahib
Excerpt:
specific belief act (i of 1877), section 42 - mortgage, payment of part consideration for--declaration, suit for that mortgage is good only to extent of consideration actually paid, maintainability of. - .....addressed to us is that the suit should have been dismissed, because it offended against section 42, specific relief act, in that plaintiff could have claimed further relief than be did by suing either for redemption or for payment to him of the amount by which he alleged that the consideration already paid was deficient. the answer as regards redemption is that the term fixed in the suit mortgage had not elapsed. the answer as regards the deficient amount is that, as pointed out by kumaraswami sastri, j., in abdul hashm sahib v. kader batcha sahib 48 ind. cas. 370 : 42 m.p 20 : 35 m.l.j. 740 : 8 l.w. 543 : (1918) m.w.n. 769 : 24 m.l.t. 478 plaintiff cannot be compelled to receive or claim the balance payable, if he prefers to do without it, the amount eventually recoverable on.....
Judgment:

1. The argument addressed to us is that the suit should have been dismissed, because it offended against Section 42, Specific Relief Act, in that plaintiff could have claimed further relief than be did by suing either for redemption or for payment to him of the amount by which he alleged that the consideration already paid was deficient. The answer as regards redemption is that the term fixed in the suit mortgage had not elapsed. The answer as regards the deficient amount is that, as pointed out by Kumaraswami Sastri, J., in Abdul Hashm Sahib v. Kader Batcha Sahib 48 Ind. Cas. 370 : 42 M.P 20 : 35 M.L.J. 740 : 8 L.W. 543 : (1918) M.W.N. 769 : 24 M.L.T. 478 plaintiff cannot be compelled to receive or claim the balance payable, if he prefers to do without it, the amount eventually recoverable on the mortgage being only that actually advanced. The second appeal is dismissed with costs.


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