DEVATHA PULLAYYA AND ANOTHER Vs. JALDU MANIKYALA RAO AND OTHERS

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree of the Subordinate Judge, Masulipatam in O. S. No. 5 of 1957 on his file. The circumstances leading upto the filing of that suit are briefly as follows;

(2.) DEFENDANTS 2 and 3 as the legal representatives of Devatha Gangaiah instituted O. S. No. 130 of 1952, on the file of Sub Court, Masulipatam for the recovery of the money due under Ex. B -5. To that action, in addition to the two mortgagors, the Official Receiver, Krishna, was also impleaded as a party, as by that time Divi Ramakrishna Charyulu was adjudicated an insolvent in I. P. No. 1 of 1949, on the file of the Sub Court, Masulipatam. Jaldu Manikyala Rao the mortgagee under Ex. A -1 and one Y. Ramachandra Rao, was also added as defendants. On 25 -3 -1953 a preliminary mortgage decree was passed by the Court. A final decree was duly passed and the properties were sold in court auction on 29 -1 -1957, and the properties so brought to sale were purchased by one Devatha Subbarao.

(3.) THE learned Subordinate Judge after framing the relevant issues arising out of the pleadings held that the mortgage (Ex. A -1) was fully supported by consideration, that the payments of discharge in 1948 were true, that the interest claimed by the plaintiffs was not usurious, that in the circumstances of this case the suit confined only to the present schedule items is maintainable, that the 1st defendant is not an agriculturist, and the 3rd defendant cannot claim the benefit of Act IV of 1938. He also repelled the claim of defendants 2 and 3 that the plaintiff should first proceed against the other items of the hypotheca before enforcing his claim against the properties sold in the court auction.