HIGH COURT OF KERALA
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(1.) THE respondent is right in his contention that a second appeal is not maintainable in view of S. 21 of Act XI of 1970. So, I am treating this appeal only as a revision petition. '
(2.) THE mortgagees are not entitled to get the amounts covered by Exts. D8 and D9 as part of the mortgage amount payable under S. 1A personal decree for mesne profits alone is obtained in these cases. But the mortgagees' contention that they are entitled to get the costs incurred by them in defending and supporting the mortgagor's title as part of the mortgage amount is correct. O. S. 419 of 1124 was filed to declare that the order of the executing court holding that the property is the tarwad property of Sankaran Nair is correct. It is a proceeding taken to support the mortgagor's title. Sub-s. 2 of S. 11 of Act XI of 1970 is in the following terms: " (2) Notwithstanding that the period of the mortgage has not expired, a mortgagor who is an agriculturist shall, on application, be entitled, subject to the provisions of subsections (4) and (6), to recover the mortgaged property on depositing in the court (a) one-third of the mortgage amount; (b) Where there is stipulation for payment of interest to the mortgagee in respect of the principal amount secured by the mortgage or any portion thereof, in addition to the usufructs from the mortgaged property or in respect of any other sum payable to the mortgagee by the mortgagor in his capacity as such and there has been arrears of such interest, such arrears calculated at the rate specified in S. 5; and (c) THE value of improvements, if any, effected in the mortgaged property by the mortgagee, subsequent to the date of the mortgage, as determined by the court. " THE Act does not define the expression "mortgage amount". So, we have to understand that expression in the light of the provisions of the Transfer of Property Act. S. 58 (a) provides that 'the principal money and interest of which payment is secured for the time being are called the mortgage money'. S. 72 enables a mortgagee to spend such money as is necessary for supporting mortgagor's title to the property and may in the absence of a contract to the contrary add such money to the principal money. When this is added on to the principal money by the provisions of the statute it become mortgage money for all purposes of the mortgage transaction. It is not a separate or a subsequent charge on the property. It becomes part of the principal money, and according to me, has to be paid for as part of the principal money when the property is redeemed. THE learned counsel for the mortgagee relied on the decision in Narayana Pillai v. Lakshmanan (1961 KLT. 52) in which a question arose whether the purakkadom amount agreed to be paid along with the mortgage money specified in the instrument of mortgage should also be deposited when redemption is sought under S. 11 of Act 31 of 1958. It was held that that must be treated as mortgage amount for the purposes of S. 11. THE respondent's counsel contended that this decision has been distinguished or not approved in a later Division Bench ruling in Varkey v. Karthiyani Amma (1961 KLT. 340 ). In the latter case the question involved was not one relating to the amount payable under S. 11 but whether on the terms of the documents in question the mortgagor can redeem one of the mortgagees alone. THEir Lordships distinguished the decision in the earlier case on this account. If the purakkadom amount agreed to be paid along with the mortgage amount specified in the instrument of mortgage can be added on to the mortgage amount and ordered payment under S. 11, it must all the more be so in the ease of a statutory addition to the principal money as per the provision of S. 72 of the Transfer of property Act. I have no doubt that the mortgagees are entitled to add the amount spent by them to support the mortgagor's title to the principal money due under the instrument of mortgage. THErefore, the courts below are clearly in the wrong in rejecting this claim of the mortgagee. THE decision relied on by the lower appellate court, namely Sivaram Chettiar v. Muthukumara Pillai (AIR. 1957 Travancore-Cochin 15) wherein the subsequent charge created for the arrears of rent under a lease back was held to be not payable under the provisions of the Travancore Debt Relief Act, 1116 has no application here. THE subsequent charge for the arrears of rent stands separately from the amount which in law can be added on to the principal money specified in the instrument of mortgage. A charge for the arrears of rent is an independent security subject if any to the intermediary dealings by the mortgagor. So, the decision in the above case cannot be applied in the facts of this case.
On this conclusion the only other question that remains is to find out the amount due to the mortgagee towards the costs of supporting the mortgagor's title. Ext. P2 sale deed relied on by the respondent mentions the amount payable to the mortgagee as the costs decreed in O. S. 419 of 1124 and the appeal therefrom. This amount is not disputed or shown to be incorrect. It is well known that the costs decreed may not be the costs actually incurred by a party to a suit, so that the amount decreed can be safely taken to be the costs incurred by the mortgagee in supporting the mortgagor's title. In this view I hold that the mortgagee is entitled to add on this Rs. 500/- to the amount due to him under Ext. P1 mortgage. Thus, the amount due to him as mortgage amount within the meaning of S. 11 (2) (a) of Act xi of 1970 will be Rs. 2257-plus Rs. 500/- i. e. , Rs. 725/ -. The respondent must deposit one-third of this amount for recovery of possession of the property under S. 11 of Act XI of 1970.
In the result, this revision petition is allowed. The decrees passed by the courts below are modified by directing that the petitioner under S. 11 must deposit one-third of Rs. 725/- towards mortgage money for recovery of possession and pay the balance of it as provided for in s. 11 of Act XI of 1970. In the circumstances of this case, I make no order as to costs. . .;
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