ADARI SANYASI Vs. VADDADI NOOKALAMMA

JUDGEMENT

(1.) This is an appeal against the order of remand made by the Subordinate Judge of Vizagapatam in A.S. No. 62 of 1927. The learned Subordinate Judge had passed this order of remand previously on 10 November 1927, but he was directed by the High Court to dispose of a petition, I. A. No. 1925 of 1927, which was for security for costs in the appeal, before disposing of the appeal. A preliminary point is taken by the appellant that he has not done so and that this order of remand must be set aside on that ground alone. We find, however that in para. 4 of his order the learned Subordinate Judge says: If it is to be deemed that no definite order was passed one way or the other on I. A. 1295, it must be presumed that the order recording the petition was an order declining to call on the appellant to furnish security. In this view of the matter the petition. I. A. 1295, must be deemed to have been dismissed. The petition is therefore dismissed.

(2.) As the learned Subordinate Judge has passed a specific order in accordance with the directions of the High Court dismissing the petition, there is no substance in this preliminary point.

(3.) Turning now to the main subject-matter of the appeal which relates to the reversal of the finding of the Court of first instance on issue 2, which issue had been disposed of by the said Court as a preliminary point, it is necessary shortly to describe the events which led to the institution of the suit, O.S. 316 of 1925. The properties in suit were usufructuarily mortgaged for Rs. 600 on 14 May 1913, in favour of one M. Sankariah by the original owners. The mortgagee filed a suit to recover the money and got a decree for sale of the property which was put up for sale and purchased by the plaintiffs father on 17 December 1914, subject to the usufructuary mortgage. On 12 February 1917, the plaintiffs father entered into an agreement with the defendant, (the present appellant) to sell him this property, and under this agreement an advance of Rs. 50 was paid on the data of the agreement. The plaintiffs father as auction-purchaser filed a suit against the mortgagee for redemption of the suit lands. He died during the pendency of the suit and the present plaintiffs who are his daughters were brought on record as his legal representatives. There was a preliminary decree passed on 31 July 1918 and three months were allowed for redemption, After the passing of this preliminary decree on 19 August 1918, defendant 1 paid the mortgage amount, Rs. 765, to the mortgagee and got a transfer of the mortgage under Ex. 1. In 1920 defendant 1 filed a suit, O.S. 117, for specific performance and a decree was given in his favour subject to the condition that he should pay Rs. 330 to the present plaintiffs and take a sale deed. This was confirmed in A.S. 236 of 1921. The defendant did not pay and neither party took further action in this matter. In 1922 the defendant filed two petitions in the redemption suit, one that he should be brought on record as transferee of the mortgagee's interest; and the other that the final decree should be passed. These are C. M. Ps. 1340 and 1350 of 1921. These two petitions were dismissed by the District Munsif. The present plaintiffs as legal representatives of the original auction-purchaser, filed this suit to eject the defendant from 2/3rds of the property which their father purchased and to recover past mesne profits from him.