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1950 DIGILAW 307 (MAD)

Mangina Venkataswami. v. Nuli Manikyam.

1950-10-10

PANCHAPAKESA AYYAR, SUBBA RAO

body1950
Order.- This is an application under Article 133, of the Constitution of India for leave to appeal to the Supreme Court against the decree and judgment of this Court dated 25th January, 1950, in Appeal No. 377 of 1948. The trustee of Sri Chenna Kesavaswami Temple instituted O.S.No. 73 of 1946 on the file of the Court of the Subordinate Judge of Ellore, against several defendants for recovery of possession of certain properties and for mesne profits. The suit comprised of various items; but before the trial, the plaintiff compromised with some of the defendants and the suit was disposed on the merits only against defendants 1 to 6 and 17 to 28. Their claim related to items 1 and 7 of the plaint schedule. The case of the plaintiff was that the lands in question belong to the deity and the mortgages effected by the archakas were invalid and therefore the plaintiff was entitled to recover possession of the same with mesne profits. The 5th defendant who is the son of the mortgagee under Exhibit B-1, one of the impugned mortgages, raised the plea that he acquired a right by prescription, the mortgagee’s right. The Subordinate Judge decreed the suit in respect of both the items. In appeal, this Court confirmed the decree of the Subordinate Judge in regard to item 7 but in respect of item 1 held that the 5th defendant acquired a right to the mortgage by prescription. In the result, we directed the lower Court to give a decree for redemption after determining the sums due to the mortgagee under Exhibit B-1. The effect of our judgment is that the plaintiff obtained a decree for redemption in respect of item 1. His title to that item was not negatived and his right to possession was conceded, and he was held entitled to recover possession after discharging the mortgage. The plaintiff has filed this application for leave to appeal to the Supreme Court. The petitioner argues that he is entitled to leave under Article 133(1) of the Constitution. His title to that item was not negatived and his right to possession was conceded, and he was held entitled to recover possession after discharging the mortgage. The plaintiff has filed this application for leave to appeal to the Supreme Court. The petitioner argues that he is entitled to leave under Article 133(1) of the Constitution. This Article runs as follows: “(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies (a) that the amount or value of the subject-matter of the dispute in the Court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or (b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or (c) that the case is a fit one for appeal to the Supreme Court.” We have held in C.M.P.No. 6638 of 1950 that an appeal will lie to the Supreme Court if the value of the subject-matter of the suit and that of the appeal was Rs.10,000 in regard to judgments delivered prior to the date when the Constitution came into force. The petitioner therefore would be entitled to prefer an appeal to the Supreme Court under Article 133( 1) (a) if the subject-matter of the suit and that in dispute on appeal is not less than Rs. 10,000. From the facts stated above, it is clear that though the suit was filed based on title for possession of item 1, in view of our judgment, the subject-matter of the appeal is confined only to the mortgage interest claimed by the fifth defendant. If so, the value of the subject-matter of the dispute in appeal would only be the mortgage amount which is admittedly below Rs.10,000. In a suit for redemption it is not correct to state that the property in dispute is the security given for the loan. The subject-matter is the loan for which the security was given. If so, the value of the subject-matter of the dispute in appeal would only be the mortgage amount which is admittedly below Rs.10,000. In a suit for redemption it is not correct to state that the property in dispute is the security given for the loan. The subject-matter is the loan for which the security was given. That the value of the subject-matter of a suit is the mortgage money and not the property given as security is also supported by the judgment of the Judicial Committee in Mirza Abid Hussain Khan v. Ahmad Hussain1. In that case, the suit was filed to enforce an annuity of Rs.125 per annum. The Privy Council held that the 110th section of the Code of Civil Procedure, 1908, applies to the value of the annuity which is sought to be recovered, not to the value of the property upon which that annuity of Rs.125 is charged. We cannot, therefore, hold that the value of the subject-matter in dispute in appeal is more than Rs. 10,000. We may also point out that the value of the property secured is also not admitted by the respondents to be of the value of upwards of Rs. 10,000. It is then contended that the petitioner would be entitled under Article 133 (1) (b) of the Constitution for leave. Learned counsel’s argument is that our judgment involved directly or indirectly some claim or question respecting property of the like amount or value. In Subramania Iyer v. Sellammal2, in construing the second paragraph of section no, Civil Procedure Code, which is analogous to Article 133 (1) (b) of the Constitution, the learned Judges held that the words “involved, directly or indirectly” contained in the second paragraph of section no, Civil Procedure Code could not be read as including cases which involved nothing but the actual subject-matter in dispute in the appeal. It is argued on the assumption that the subject-matter of the suit and the appeal was only the amount advanced on the mortgage, the decision of the High Court involved a question respecting property of a higher value as, if the amount was not paid, the plaintiff would not be entitled to recover possession and also if the mortgagee filed a suit and obtained a decree, he might sell the property of a value of not less than Rs.10,000. In support of this argument learned counsel relied on a decision of the Allahabad High Court in Nadir Hussain v. Municipal Board, Agra3. In that case, the following are the facts material to our purpose. A suit was filed against defendants 2 to 4 for recovery of Rs. 7,625 on a hypothecation bond and in case of default, the mortgaged property was liable to be sold. The Subordinate Judge gave a decree against defendants 2 to 4 for a sum of Rs. 915 and in default the properties were liable to be sold. The High Court held that the amount of Rs. 7,625 was charged on the property. It is therefore clear that the value of the subject-matter so far as defendants 2 to 4 were concerned, was less than Rs. 10,000. But the learned Judges gave leave under the second paragraph to section 110, Civil Procedure Code. They observed as follows: “But it cannot be disputed that property worth more than Rs. 7,625 can be put up for sale at auction in execution of the mortgage decree and sold. After the realisation of Rs. 7,625 the balance will have to be paid to the defendants. It is also clear that at auction the mortgaged property may not fetch its value and therefore property worth more than Rs. 10,000 may be sold at auction for realisation of Rs. 7,625 only”. On the aforesaid reasoning, they held that the appeal involved directly or indirectly a claim in respect of property of the value of more than Rs. 10,000. The same view is expressed by the Patna High Court in Ishwari Prasad Singh v. Kameshwar Singh1. There the plaintiff brought a suit for a declaration that a certain property could not be attached and sold in execution of the certificate in Certificate Case, No.1099 of 1934-35. The suit was valued at Rs. 7,699 odd because that was the amount for which the certificate was issued. It was conceded that the value of the property which was liable to be sold was Rs. 52,000 odd. On those facts, the learned Judges held that paragraph 2 of section 110 Civil Procedure Code applied and gave leave to appeal to the Privy Council. 7,699 odd because that was the amount for which the certificate was issued. It was conceded that the value of the property which was liable to be sold was Rs. 52,000 odd. On those facts, the learned Judges held that paragraph 2 of section 110 Civil Procedure Code applied and gave leave to appeal to the Privy Council. The reason for their decision is found in the following passage: “It is plain that if the plaintiffs do not succeed in this litigation the property which they have purchased in execution of their mortgage decree will be liable to be sold, and that property is worth much more than Rs. 10,000. That being so, it is difficult to hold that the decree which is sought to be appealed from does not involve indirectly a question respecting properly more than Rs. 10,000”. We are unable to accept the above interpretation put upon section 110 (b), Civil Procedure Code. The paragraphs in section 110, Civil Procedure Code must be read together so as to reconcile the various provisions. If the provisions of the second paragraph are interpreted in the aforesaid manner, the provisions of the first paragraph would become nugatory. If the view adumbrated above is logically extended, it will have to be held that even in money decrees the judgment and decree of the appellate Court involved, directly or indirectly, a question respecting property of a value not less than Rs. 10,000 as, in execution of that money decree, properties of that value may be sold. Under section 110, paragraph 2, the decree or final order must involve, directly or indirectly, some claim or question to or respecting property of like amount or value. Can it be said that the appellate decree involved a claim or question in respect of the property given as security. These words were construed in Appalaraju v. Rangappa Naicker2. The learned Judges say at page 14: “But in construing the word ‘property’ in the second paragraph, we cannot lose sight of the first paragraph of section 110 to which the second is an alternative. I think ‘property’ in the second paragraph of section no means rights in property inferior to full ownership, where such inferior rights alone are the subject-matter in dispute. I think ‘property’ in the second paragraph of section no means rights in property inferior to full ownership, where such inferior rights alone are the subject-matter in dispute. Hence the second paragraph means that the suit must, to satisfy its conditions, involve rights and claims to property which rights and claims are worth Rs. 10,000 and upwards.” In this case the claim is either the right to redeem the mortgage or the claim to recover the amount. That claim is not either directly or indirectly, of the value of more than Rs. 10,000. In Satibaladasi v. Chotanagpur Banking Association, Ltd.3, when a similar contention was raised, it was negatived with the following observation: “In a mortgage suit the property which is given as security for the loan is not the ‘property’ in dispute in the suit, nor is a decision that the mortgagee is entitled to recover the money which he advanced one involving either a claim to or question respecting the security. The only property in dispute in a mortgage suit is the loan advanced to the mortgagor by the mortgagee. The mere fact that, if this loan is not repaid in the time fixed by the decree, the mortgaged property will be sold does not, in my opinion, raise any question affecting the security”, We respectfully agree with these observations. The claim in this appeal does not raise any question either directly or indirectly, affecting the security. The only question is whether the plaintiff is bound to redeem the mortgage by paying the amount ascertained by the Court below. We therefore hold that the plaintiff cannot take advantage of Article 133 (1) (b) either. It is then contended that we should give a certificate under clause (c) of Article 133(I) on the ground that the appeal involved a question of public importance, viz., whether an idol is a ‘person’ and therefore eligible to come within the definition of an “agriculturist” within the meaning of section 3 of Madras Act IV of 1938. But we have abstained from deciding that point as the suit was brought only on behalf of the temple, a religious institution, which is excluded from the definition of a “person” in section 3 of Madras Act IV of 1938. It therefore follows that no question of public importance arises in this case. But we have abstained from deciding that point as the suit was brought only on behalf of the temple, a religious institution, which is excluded from the definition of a “person” in section 3 of Madras Act IV of 1938. It therefore follows that no question of public importance arises in this case. In the view we are taking it is unnecessary to call for a report on the question of the valuation of item 1 of the plaint schedule property. In the result, the petition is dismissed with costs. K.S. ----- Petition dismissed.