- (1.) THE third defendant is the appellant. The suit is for recovery of Rs. 6,348-45 and subsequent interest on foot of a mortgage dated 5-5-1946 executed by defendants 1 and 2 in favour of one Pavalesa Konar and received consideration as recited in the document. The said mortgage was made redeemable at any time after 5-5-1948. The mortgagors agreed that in default of repayment of the mortgage debt before that date they would be liable to pay compound interest at the rate of 75 paise per Rs. 100 per month, Rs. 6,348-45 is now due on the aforesaid mortgage, which is claimed in the suit.
(2.) BEFORE dealing with the points raised I shall now state the real controversy between the parties. Defendants 1 and 2 are the original owners of the suit property. On 5-5-1949 (Ex. A-2) he executed an oath in favour of Palavesa Konar. On 1-5-1949 (Ex. A-3) the second defendant executed a sale in favour of the first defendant reserving a right of residence in favour of himself and his wife. On 15-61949 the first defendant executed a second mortgage in favour of Gurunatha konar for Rs. 2,000. On 26-12-1949, the first defendant executed a third mortgage for Rs. 3,000 in favour of the first mortgagee. On 12-9-1961, (Ex. A12), mortgage for Rs. 2,000 in favour of one Kuppammal, which the mortgagee assigned to the fourth defendant. A fifth mortgage was created by the first defendant in favour of a chit fund for Rupees 3,000 and a sixth mortgage was executed by the first defendant in favour of Muthammal, the sixth defendant, for rs. 1,000. The third mortgagee's rights under Ex. A-4 were assigned to the 8th defendant on 28-6-1963. The result is that over the suit property on the date of the suit the following persons held rights- (1) The first mortgage to Palavesa Konar. (2) The second mortgage to the plaintiff-assignee from the 8th defendant. (3) The third mortgage to the 8th defendant (assignee ). (4) The fourth mortgage to the 4th defendant (assignee ). (5) The fifth mortgage to 5th defendant; and (6) The sixth mortgage to the sixth defendant. The plaintiff, who was the assignee of the second mortgagee's interest, filed O. S. 209 of 1955, on the file of the District Munsif Court of Tirunelveli. To that suit all the subsequent mortgagees were impleaded as parties as also the first defendant the mortgagor. Palavesa Konar, who was the first mortgagee, was, however, impleaded as the 3rd defendant not in his capacity as the first mortgagee but in his capacity as third mortgagee only which mortgage right the third mortgagee assigned to the 8th defendant under Ex. B-1 dated 28-6-1962. On 26-3-1956, a preliminary decree for sale was passed which was followed by the final decree dated 22-10-1956. Meanwhile the first defendant mortgagor was adjudicated an insolvent. It may be noted that the secured creditors' rights are not affected by the said insolvency proceedings and the final decree in O. S. 209 of 1955 was executed after amendment of the decree. Meanwhile on 3-4-1961, one kuppammal purchased the suit property from the Official Receiver. In the court auction sale held on 15-9-1961, the plaintiff-decree-holder purchased the hypotheca for Rs. 4,005, subject to the first mortgage Ex. A-2. A sale certificate was issued in favour of the purchaser and the plaintiff took delivery of possession on 7-12-1961 and part satisfaction of the decree was recorded for Rs. 3,904, although the sale was brought for recovery of Rs. 4,933-6-6. In regard to Official receiver's sale to Kuppammal one Siva Sankaran claimed to be the real owner and his claim was upheld. Regarding possession certain suits were filed, which do not have any material bearing on the controversy in dispute. The plaintiff who, as already stated, was the purchaser in the second mortgagee's suit for sale, paid Rs. 6,000 to the legal representatives of the first mortgagee, Palavesa Konar, and obtained a release of the mortgagee's right in his mortgage. (Ex. A-11 dated 14-21962 ). Sivasankaran who established his right as against Kuppammal also sold his interest to the plaintiff under Ex. B-8 dated 18-10-1962. The plaintiff has filed the present suit on the first mortgage (Ex. A-2 dated 5-5-1946 ).
(3.) THE learned counsel for the appellant contends: (1) That the suit is not maintainable as the plaintiff's remedy, if any, is also to work out his rights under the decree in O. S. 209 of 1955 (2) That the first mortgage was not fully discharged by the plaintiff, who claimed to have paid only Rs. 6,000 at the time of ex. A-11 as against Rs. 6,900 due on that date. (3) That the suit mortgage became barred by limitation on 14-2-1962, when Palavesa Konar's heirs were paid rs. 6,000 and that the acknowledgment Ex. B-4 cannot extend the period of limitation and (4) There can be no subrogation as the plaintiff was under no obligation to discharge the mortgage (Ex. A-2) it having become time barred and further the plaintiff had no interest in the property, this mortgage having become merged in the decree and that there was no mesne mortgages between the one in his favour and the other under the original of Ex. A-2, for protecting which alone he could redeem the later mentioned mortgage and claim subrogation.;