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P.R. Govindaswami Naicker Vs. C. Javanmull Sowcar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1938)2MLJ918
AppellantP.R. Govindaswami Naicker
RespondentC. Javanmull Sowcar and anr.
Excerpt:
- .....section 69 of the transfer of property act the creditor is now about to recover by sale of the debtor's property mortgaged to him the full amount of the debt, that is to say, without deducting the amount by which it has become reduced by the operation of the agriculturists relief act.8. the suit is for an injunction to prevent him from doing so. i think such a suit lies and that since the sale is imminent an interim injunction might appropriately be granted. i do not think it is any answer to say that under the provision of section 69 of the transfer of property act the petitioner will be entitled to recover damages if the mortgagee exercises his power of sale in an improper or irregular manner. the suit simply is to prevent the mortgagee from doing what he is not entitled to do,.....
Judgment:
ORDER

Stodart, J.

1. The petition in my opinion must be allowed.

2. The first two grounds have been, I think, properly rejected by the learned Judge.

3. But the third ground has in my opinion been wrongly rejected.

4. I assume that the debtor is an agriculturist though in his plaint barring the simple statement that he is one, there are no averments in support of that statement.

5. On this assumption however the Madras Agriculturists Relief Act applies to this debt and the debt, by the operation of that Act, becomes reduced.

6. Under Section 7 of the Act no sum in excess of the reduced amount is recoverable from any land belonging to the debtor.

7. Under Section 69 of the Transfer of Property Act the creditor is now about to recover by sale of the debtor's property mortgaged to him the full amount of the debt, that is to say, without deducting the amount by which it has become reduced by the operation of the Agriculturists Relief Act.

8. The suit is for an injunction to prevent him from doing so. I think such a suit lies and that since the sale is imminent an interim injunction might appropriately be granted. I do not think it is any answer to say that under the provision of Section 69 of the Transfer of Property Act the petitioner will be entitled to recover damages if the mortgagee exercises his power of sale in an improper or irregular manner. The suit simply is to prevent the mortgagee from doing what he is not entitled to do, namely, to bring the property to sale for more than is due on the mortgage. That is an act which will cause loss to the mortgagor for it deprives him of the opportunity to redeem on payment of the amount properly due. It is an act therefore which can be prohibited by injunction.

9. In the result the Civil Miscellaneous Appeal is admitted. Meanwhile the sale must not be held.

10. Civil Miscellaneous Petition is allowed with costs.


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