Decided on December 04,1953



Rajamannar, C. J. - (1.) The appellant executed on 20-4-1936 in favour of the respondent a deed of simple mortgage for a sum of Rs. 99,999. The properties secured under the mortgage included houses in the city and lands in the district of Krishna. He executed a second mortgage in favour of his mother, V. Sundaramma for Rs. 1,60,000 on 3-11-1936. She, as puisne mortgagee filed an application on the Original Side of this Court (No. 827 of 1949) to scale down the debt due to the respondent. On that application, Krishnaswami Nayudu J. made an order directing the matter to be enquired into by the Official Referee, after holding that V. Sundaramma was an agriculturist entitled to the benefits of the Madras Agriculturists' Relief Act. The respondent filed an appeal against the said order, O. Section A. No. 119 of 1950. Meanwhile, the respondent filed a petition O. P. No. 139 of 1949, on the original side, under Section 69-A. T. P. Act, 'inter alia' to restrain the appellant from collecting the rents of some of the properties which were included in the mortgage, which in fact were the only properties left after other properties mortgaged had been sold. There was an ex parte order on the application on 22nd April 1949 restraining the appellant from collecting the rents of the suit properties. Subsequently, the court varied the order by appointing an advocate of this court as a receiver for collecting the rents and depositing the same into court towards the credit of the said petition (O. P. No. 339 of 1949). The appellant then filed an application No. 2532 of 1950, purporting to be under Section 19-A, Madras Agriculturists' Relief Act for scaling down his debt on the basis that he was entitled to the benefit of the newly added Section 13-A of the said Act. That application was dismissed by Rajagopalan J. on the ground that a substantive application by the appellant under Section 19-A of the Act was not maintainable as he was not an agriculturist within the definition in Section 3(2) of the Act. The appellant carried the matter in appeal (O. S. A. No. 24 of 1951), but the appeal was dismissed. The respondent contended before Rajagopalan J. that the appellant was in any event not entitled to rely on Section 13-A of the Act, but this contention was not dealt with in the view taken by the learned Judge. This point was not dealt with in appeal either. Rajagopalan J. in the course of his judgment made it clear that his decision did not imply that the appellant had no other remedy. He said: "It may be open to the debtor to sue the creditor for a declaration that only a certain amount is due, as calculated with reference to Section 13 A. It may equally be possible for the debtor to resist a claim in a court of law by the creditor as plaintiff to the contract rate of interest and say that only statutory rate of interest referred to in Section 13-A should be allowed. I am not exhausting the list of remedies open to a creditor or debtor." The learned Judge concluded by saying that the disposal of the application before him in no way precluded the appellant from enforcing his rights in other and appropriate proceedings .
(2.) After the disposal of O. S. A. No. 24 of 1951, the appellant filed an application, No. 3461 of 1952, in O. P. No. 139 of 1949 for several reliefs of which it is sufficient to mention one, namely, to discharge the receiver from the office of the receivership. In the affidavit filed by him in support of this application, he alleged that on a proper calculation in accordance with the provisions of Section 13-A the mortgage debt in favour of the respondent had been wiped away and nothing was due from him to the respondent and therefore the receiver should be discharged. We are not concerned with the other allegations and reliefs claimed by the appellant. The application was heard and disposed of by Panchapakesa Aiyar J. on 12-12-1952. The learned Judge held that the application was not the proper form to agitate the matter of the liability of the appellant. In his opinion, the appellant could either file a suit for redemption or resist a suit against him for the full unsealed amount and in such proceedings he could plead his right to scale down the debt. It is against this order of Panchapakesa Aiyar J. that the above appeal has been preferred.
(3.) On 28-4-1953, when the appeal was called, the learned counsel for the respondent made a representation to us that the matter had been compromised on the previous day, that is, 27-4-1953. This was denied by the appellant. The appeal was therefore adjourned at the instance of the respondent who represented that he would file an application to enforce the compromise. He accordingly filed on 3-7-1953 an application C. M. P. No. 6930 of 1953, praying that this court may record the compromise entered into between the parties and pass a decree in terms thereof. The terms of the compromise, according to the respondent;, were contained in a letter dated 27-4-1953 from the appellant to the respondent (Ex. R. 2). The letter was annexed to the affidavit in support of the application. The letter 15 signed by the appellant, and there is also the signature of the respondent in token of his acceptance. The appellant opposed the application on the ground that there had been no completed compromise binding on him. As there was a dispute on a question of fact, namely, who ther there was a concluded compromise or not, we thought it desirable to direct the1 Master to hold an inquiry after notice to the parties and they submit a report on a consideration of the evidencd adduced before him on the question whether there was a concluded compromise between the parties. In pursuance of our order, the Master made an enquiry and has sent up his finding that, there was no completed and lawful compromise so as to bind the appellant. Mr. Viswanatha Aiyar, learned counsel for the respondent in the appeal and the petitioner in the application attacked the correctness of this finding.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.