Skip to content


Anudala Subramiah Vs. Kandasubba Reddi Minor by Adoptive Mother and Next Friend, Lakshmamma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in14Ind.Cas.213
AppellantAnudala Subramiah
RespondentKandasubba Reddi Minor by Adoptive Mother and Next Friend, Lakshmamma and ors.
Cases Referred and Rameshar Upadhya v. Subbkaran Upadhya
Excerpt:
compromise-decree, construction of - creating 'aiyaka,' over properties--mortagage or charge--mortagage right over property before compromise--mortgage right, whether can be created by decree of court. - .....he was made a party to the suit. the right to sale is based by the plaintiff on the compromise-decree, exhibit b. the lower appellate court held that under that document, plaintiff had a mortgage-right over the property in question. it is contended that it created only, a charge. exhibit b states that the property should remain under aiyaka for the debt in question. it is not denied' that the word aiyaka may mean either a mortgage or a charge. it is also conceded that, prior to the institution of the suit which terminated in the compromise, the plaintiff had a mortgage over the property. we think that the proper construction of exhibit b, in the circumstances, is that the property should continue to be under mortgage for the debt. it is next argued that exhihit b being a decree of,.....
Judgment:

1. The question argued in this second appeal is, whether the suit for sale was barred against the 2nd defendant with regard to the 9th instalment when he was made a party to the suit. The right to sale is based by the plaintiff on the compromise-decree, Exhibit B. The lower Appellate Court held that under that document, plaintiff had a mortgage-right over the property in question. It is contended that it created only, a charge. Exhibit B states that the property should remain under aiyaka for the debt in question. It is not denied' that the word aiyaka may mean either a mortgage or a charge. It is also conceded that, prior to the institution of the suit which terminated in the compromise, the plaintiff had a mortgage over the property. We think that the proper construction of Exhibit B, in the circumstances, is that the property should continue to be under mortgage for the debt. It is next argued that Exhihit B being a decree of, Court, could ornate only a charge and not a mortgage which could only be made by act of parties. But the decree was passed in terms of the contract of compromise between the parties and was intended to give effect to it. We cannot agree with the learned Vakil for the appellant that a contract to create a mortgage cannot be given effect to by a decree of Court. There is nothing in our judgment in Varadachariar v. Ramasawamy Chetty 21 9 Ind. Cas. 875 which leads to this conclusion. That case merely points out that a contract between the parties. The construction of a compromise-cecree is something more than a contract between the parties. The construction of a compromise-decree must generally follow the construction of the compromise itself. Nagappa v. Venkat Raw 24 M.k 265; Lakshmanasawami Naidu v. Rangamma 26 M.k 31; Gobinda Chandra Pal v. Dwaraka Nath Pal 12 C.W.N. 849 and Rameshar Upadhya v. Subbkaran Upadhya 10 Ind. Cas. 481 which have been relied on for the appellant do not realy support him. They lay down, no doubt, that prima facie a decree of Court would be taken to intend to create only a charge and not a mortgage, but they do not say that the decree cannot make a mortgage. In neither of these cases was there anything to show that the Court intended to create a mortgage. We hold that, in this case, the plaintiff obtained a mortgage-right under Exhibit B. We may note that the appellant in this Court is the 1st defendant and, as against him, the suit was admittedly within time.

2. The second appeal is dismissed with costs of plaintiff.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //