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Palanivel Gounden Vs. Subbaroya Gounden - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1941Mad889
AppellantPalanivel Gounden
RespondentSubbaroya Gounden
Cases ReferredDoroikannu Odayar v. Veeraswami Padayachi
Excerpt:
- .....impleaded as the vendee of the hypotheca in a mortgage suit. this decision cannot be upheld having regard to the decision of the bench in : air1939mad186 , perianna v. sellappa. the second ground on which the application was rejected is that the liability which the petitioner seeks to scale down is one in respect of which there is a charge under section 55 (4)(b), t.p. act, and that therefore by section 10 (2)(ii) of madras act 4 of 1938, the debt cannot be scaled down. this contention must be negatived, having regard to our decision in o. n. p. no. 602 of 1939 reported in : air1941mad59 , doroikannu odayar v. veeraswami padayachi . the liability to the decree-holder is not the same as the liability to the mortgagor in respect of which 'the vendor's lien subsists. in the result therefore.....
Judgment:

Wadsworth, J.

1. The petitioner applied under Section 19 of Act 4 of 1938, to scale down the decree and his application was rejected. The grounds for this rejection were two-fold. Firstly it was held that the petitioner could not be regarded as a judgment-debtor, he being impleaded as the vendee of the hypotheca in a mortgage suit. This decision cannot be upheld having regard to the decision of the bench in : AIR1939Mad186 , Perianna v. Sellappa. The second ground on which the application was rejected is that the liability which the petitioner seeks to scale down is one in respect of which there is a charge under Section 55 (4)(b), T.P. Act, and that therefore by Section 10 (2)(ii) of Madras Act 4 of 1938, the debt cannot be scaled down. This contention must be negatived, having regard to our decision in o. n. p. No. 602 of 1939 Reported in : AIR1941Mad59 , Doroikannu Odayar v. Veeraswami Padayachi . The liability to the decree-holder is not the same as the liability to the mortgagor in respect of which 'the vendor's lien subsists. In the result therefore the civil revision petition must be allowed with costs and the application remitted to the trial Court for disposal in the light of this judgment.


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