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1951 DIGILAW 131 (KER)

Kunhikutty Amma v. Narayana Menon

1951-11-02

GANGADHARA MENON, SANKARAN

body1951
Judgment :- 1. This is a matter arising in execution) Defendants 1 and 2 are the appellants. The decree allowed defendants 1 and 2 to draw the mortgage money that had already been deposited in court, and directed the plaintiff to recover possession of the mortgaged properties with mesne profits at the rate of 140 paras of paddy and the puravaka dues stipulated in the mortgage deed. Before the properties were recovered in execution Proclamation VI of 1124 came into force. Thereafter the decree-holder applied for execution of the decree in respect of mesne profits. Objection was taken that as per the provisions of the Act the decree-holder can recover only the rent stipulated in the document. The execution court upheld the objection. The lower appellate court reversed the order and allowed the decree-holder to execute the decree for the entire mesne profits allowed. 2. Under the mortgage deed out of the total the pattom of 140 paras of paddy per annum was allowed to be appropriated towards the interest for the mortgage money of Rs. 200/- and the balance was stipulated to be paid as Michavaram. The decree allowed the entire amount of 140 paras of paddy as mesne profits from the date of the decree till recovery of the properties 3. Section 4 of Proclamation VI of 1124 provides: "Notwithstanding anything contained in any other law for the time being in force [a] no suit for the redemption of a mortgage with possession executed on or after the first day of Chingom 1111 shall be maintainable in OUR courts where the property comprised in the mortgage was outstanding with the mortgagee or his predecessor in interest on verumpattom immediately prior to the mortgage with possession; and [b] no suit for the redemption of a mortgage with possession shall be maintainable in OUR courts; where the interest on the mortgage amount is less than 40 per cent of the total rent fixed in the mortgage document and where the property comprised in the mortgage consists mainly of agricultural land other than lands planted with rubber, coffee, tea or cashew. [2] All suits, appeals, revisions, reviews and proceedings in execution of a decree for redemption of mortgages of the nature specified in Sub-section [1] of this Section shall be stayed by OUR courts in so far only as they relate to the relief for redemption. [2] All suits, appeals, revisions, reviews and proceedings in execution of a decree for redemption of mortgages of the nature specified in Sub-section [1] of this Section shall be stayed by OUR courts in so far only as they relate to the relief for redemption. [3] Nothing contained in this section shall preclude the mortgagor from instituting a suit for the recovery of rent and puravaka dues for which the mortgagee shall be liable." 4. It is admitted that the present decree is of the nature specified in Sub-section 1 of Section 4. Therefore by virtue of the operation of Sub-sections 2 and 3 of Section 4, all proceedings in execution of the decree in so far as they relate to the relief for redemption are to be stayed and the mortgagor is entitled to recover only the rent and puravaka dues, i. e., the michavaram stipulated in the mortgage deed and other puravaka dues mentioned therein. It is clear from the Section that what the legislature intended was that the relationship of the mortgagor and the mortgagee should continue in spite of the decree for redemption that bad been passed. The right given under the decree for recovery of mesne profits was incidental to the main relief for redemption granted under the decree. Therefore as long as redemption is stayed no right to recover mesne profits can arise as the possession of the defendants can be considered only as that of mortgagees. This is abundantly clear from Sub-section 3 to Section 4 which expressly reserves the rights of the mortgagor for the recovery of the rent and puravaka dues for which the mortgagee is liable. The plaintiff can therefore recover only the michavaram of 140 paras of paddy and the puravaka dues stipulated in the mortgage document. The defendants have no objection in the plaintiff recovering these amounts in execution. 5. Therefore we allow this appeal with costs and in reversal of the order of the lower appellate court restore that of the Munsiff. Allowed.