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P.K.L.S. Nachiyappa Chettiar and anr. Vs. Marappa Goundan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1942)1MLJ329
AppellantP.K.L.S. Nachiyappa Chettiar and anr.
RespondentMarappa Goundan and anr.
Cases ReferredVenkatammal v. Ramaswami Aiyar
Excerpt:
- - that money debt cannot in any sense be-regarded as binding the property purchased by the appellant and it is clearly a debt due from somebody other than the person who claims to scale down the suit liability. 5. in the matter of costs in the appeal, the appellant has succeeded only to a fraction of the extent covered by his appeal and his success has been on points which he did not raise in his memorandum of appeal and of which the respondent had little notice. in- these circumstances, we think it proper to order that the appellant shall pay to the respondent costs proportionate to the extent of his failure in this appeal and, shall bear his own costs......due from his mortgagor. it follows, therefore, that the lower court is wrong in scaling down this debt with reference to the antecedent promissory notes. the plaintiff is therefore entitled' to a decree for the principal amount of the bond rs. 5,000 with interest at 5 per cent, under section 9 of the act from the date of the bond, 21st december,. 1932 to 22nd march, 1938, the date of the commencement of the act and thereafter at 6 per cent.4. there, is a further point which has been argued though not raised in the memorandum of appeal. it. appears from the calculation memoranda filed by both sides that the plaintiff has) since the suit was filed, made two payments one of rs. 44-7-3 and the other of rs. 156-2-2 in discharge of a liability due from the mortgagor on account of land.....
Judgment:

Wadsworth, J.

1. This appeal, to which the civil revision petition is filed as an alternative, arises out of an amended decree passed on an application under Section 19 of Act IV of 1938. The suit was filed on a security bond executed by the first defendant for Rs. 5,000. The debt covered by the bond had its origin in two earlier promissory notes, a matter of some importance, since the bond itself is, dated 21st December, 1932, i.e., after the date specified in Section 8 of Act IV of 1938. The sixth defendant in 1935 purchased the lands covered by the bond, undertaking to pay a sum of Rs. 8,500 towards the bond, but he paid nothing. The decree was passed in 1936, and after the Act came into force the sixth defendant filed an application to scale down the decree.

2. The only contentions which seem to have been pressed in the lower Court related to the question whether the Act was ultra vires and whether the decree against the sixth defendant was one which could not be scaled down with reference to Section 10 (2) (if) of the Act. Both these points were also taken in the appeal and both are covered by authorities adverse to the plaintiff-appellant. The appellant has, however, in the arguments before us raised two contentions which are not mentioned in the memorandum of appeal and are not dealt with in the lower Court's order. The first contention is, that although on the authority of Perianna's case : AIR1939Mad186 the sixth defendant may be deemed to be under a property liability, the date of which is fixed with reference to the date of. the original bond, the sixth defendant had nothing to do with the antecedent promissory notes nor had the property which he purchased anything to do with those notes and therefore, the sixth defendant is only entitled to scale down the decree with reference to the suit bond and cannot go behind it. We had to deal in Venkatammal v. Ramaswami Aiyar : AIR1941Mad62 with a case in which the purchaser of property bound by a mortgage successfully claim-ed the right to scale down his debt, not merely with reference to the actual suit mortgage, but also with reference to an earlier mortgage on the same property by the same mortgagor, discharged by the later mortgage on which the suit was filed. But the decision in that case is only authority for the position that when a purchaser seeks to scale down what has been referred to as a 'property liability' under a mortgage, he can go back to an antecedent mortgage by the same mortgagor over the same properties, the date of the property liability being regarded as the date when the property originally became bound by the antecedent debt. The position is, however, quite different when the mortgage which binds the property is traced back not to any antecedent mortgage on the same property, but to a simple money debt due from the mortgagor. That money debt cannot in any sense be-regarded as binding the property purchased by the appellant and it is clearly a debt due from somebody other than the person who claims to scale down the suit liability.

3. In our view, the sixth defendant in the present case cannot claim that his liability is a renewal of the previous money debt due from his mortgagor. It follows, therefore, that the lower Court is wrong in scaling down this debt with reference to the antecedent promissory notes. The plaintiff is therefore entitled' to a decree for the principal amount of the bond Rs. 5,000 with interest at 5 per cent, under Section 9 of the Act from the date of the bond, 21st December,. 1932 to 22nd March, 1938, the date of the commencement of the Act and thereafter at 6 per cent.

4. There, is a further point which has been argued though not raised in the memorandum of appeal. It. appears from the calculation memoranda filed by both sides that the plaintiff has) since the suit was filed, made two payments one of Rs. 44-7-3 and the other of Rs. 156-2-2 in discharge of a liability due from the mortgagor on account of land improvements loans taken from the Government. The joint memo of calculation filed in the lower Court specifically includes the loans paid by the plaintiff in the amount which the plaintiff shall be entitled to recover. By some oversight these two payments have been omitted from the lower Court's decree. The decree will, therefore, be amended by the addition of these two amounts with interest at 5 per cent. from the date on which they were paid to 22nd March, 1938, and thereafter at 6 per cent. It is represented that the plaintiff has made further payments towards these loans in order to preserve the property from sale at the instance of the Government. We cannot go into the question of these further payments about which we have no information and which are not covered by the joint memo in the lower Court. The plaintiff must seek his remedy separately with reference to these amounts.

5. In the matter of costs in the appeal, the appellant has succeeded only to a fraction of the extent covered by his appeal and his success has been on points which he did not raise in his memorandum of appeal and of which the respondent had little notice. In- these circumstances, we think it proper to order that the appellant shall pay to the respondent costs proportionate to the extent of his failure in this appeal and, shall bear his own costs. The civil revision petition is dismissed. No order for costs therein. Appeal allowed in part and petition dismissed.


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