RM. AR. ADAIKKAPPA CHETTIAR Vs. KUMBAKONAM CITY UNION BANK LTD

JUDGEMENT

(1.) THE tenth defendant appeals. The suit out of which the appeal arises was instituted by the Kumbekonam City Union Bank Ltd., for recovery of Rs. 26,137.10 with a charge on the properties described in the plaint schedule. Defendants 1 to 3 for themselves and on behalf of then minor sons, defendants 4 to 9 executed Ex. A -1, a registered security bond on 12 -7 -1963 in favour of the plaintiff. The security was furnished to cover loans to be advanced by the Bank subsequent to the date of the bond. Pursuant to the bond, defendants 1 and 2 are alleged to have borrowed Rs. 21,000/ - from the plaintiff on 28 -9 -1964 by executing a promissory note on that date. It was to recover this loan with interest and a charge on the property that the plaintiff instituted the suit, impleading the tenth defendant as a subsequent mortgagee.

(2.) THE tenth defendant, who is a Nattukottai Chettiar money lender (Adaikappa Chettiar) filed an answer in which he claimed that on 7 -5 -1963 itself defendants 1 and 2 had executed Ex. B -1, a mortgage in his favour for Rs. 3,000/ - receiving the entire consideration on the date of execution itself. He therefore claimed that the decree in favour of the plaintiff should be subject to the prior mortgage in his favour.

(3.) THE two points that arise for determination are: