PALLIKKONDI MATHA Vs. KANIYARAKKAL NATUVITE VALAPPIL MAYAN KUNHI
HIGH COURT OF MADRAS
KANIYARAKKAL NATUVITE VALAPPIL MAYAN KUNHI
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Panchapakesa Ayyar, J. -
(1.) The civil miscellaneous second appeal raises an interesting question of law. Respondent 1, Mayan Kunhi, usufructuarily mortgaged certain properties to the decree-holder, Matha. Respondent 2 Kumaran, bought the equity of redemption from respondent 1, and also got a lease back of the property from the usufructuary mortgagee, Matha. Finally Matha filed a suit, O. S. No. 182 of 1933, and got a preliminary decree on 17-4-1936. There was an appliction by Kumaran for scaling down that decree under the Madras Agriculturists Eelief Act. By consent of all the parties, the decree amount was scaled down, on 4-71947 in I. A. No. 3264 of 1946. The mortgage amount was admitted to be Rs. 400, and the arrears of rent to be Rs. 8 for the year 1933, Rs. 64 for 1934-35, and Rs. 21-5-5 for the subsequent period till 11-7-1935. The amended decree was passed for the composite amount arrived at thus. When it was sought to be executed by Matha Kumaran contended that the decree was also for arrears of rent and involved his eviction from the holding, and therefore was liable to be stayed under the Act XVII  of 1946. The District Munsif of Cannanore upheld that contention, and dismissed Matha's petition R. E. P. No. 222 of 1947, without costs.
(2.) Matha took the matter in appeal to the District Judge, North Malabar. The District Judge, by his judgment dated 30-7-1948, dismissing A. S. No. 655 of 1947, held that, though the mortgage decree consisted of the admitted mortgage amount of Rs. 400, and some rent amounts, it became a composite decree by adding up all these amounts, including the lease amounts, and so fell within the mischief of Madras Act XVII  of 1946, and compelled the Court to stay such an execution proceeding.
(3.) Though this is a hard case for the decree-holder, the reasoning of the lower appellate Court cannot be said to be wrong. The learned counsel for Kumaran urged before me that to divide the mortgage amount in this composite decree from the lease amount would be in effect to substitute two decrees for one, and that, in the absence of specific provisions, like Section 14, Madras Agriculturists Relief Act, enabling a Court to divide a decree into two parts, the Court would not have the said power, and the decree, being one and indivisible, will fall within the mischief of Act XVII  of 1946 and the stay given there. I agree.;
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