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1958 DIGILAW 106 (KER)

Krishna Pillai v. Kunjikkavamma Thampuran

1958-06-04

C.A.VAIDIALINGAM, G.KUMARA PILLAI

body1958
JUDGMENT G. Kumara Pillai, J. 1. Against the preliminary decree in a suit for redemption of a mortgage these two appeals have been filed, one by the plaintiff in whom now vests the mortgagor's interest and the other by the legal representatives of the mortgagee. The preliminary decree allows redemption but has not fixed the price of redemption. Certain directions are given in the preliminary decree for fixing the price of redemption in the final decree after a settlement of accounts. The complaint in the mortgagor's appeal, A. S. 92 of 1955, is entirely against some of those directions and the complaint in the mortgagee's appeal, A. S. 108 of 1955, is against one of the directions and also the order regarding costs. 2. The first ground urged by the appellant's counsel in A. S. No. 92 of 1955 refers to amounts paid by the mortgagee to the mortgagor on account of tax. The direction in the lower court's judgment regarding the settlement of accounts with respect to this item reads as follows : "I accept the plaintiff's statement and hold that the Sircar tax for plaint items 1 to 10 is Rs. 38-6-4. I further hold that 1st defendant has been paying Rs. 45-7-11 towards tax due for these items from 1063. First defendant mortgagee is entitled to get back the excess amount paid under this head with 6% interest from the date of the mortgage. This account has to be settled at the time of redemption." In her written statement the mortgagee had claimed repayment of the excess amount only from 1081 and, therefore, the lower court was wrong in directing the amount to be settled on the basis that repayment ought to be made from 1063 onwards. The appellant's complaint in respect of this item is that the direction should be that there should be a repayment only in respect of the years 1081 and onwards. The respondent's counsel rightly conceded this ground for, defendant herself had claimed repayment in the written statement only from 1081 onwards. The appellant's counsel had another complaint also in respect of this item, namely, that the award of interest was not proper. It is pointed out that except at the time of filing the suit the mortgagee had not claimed repayment of the amount and that the wrong amount was also paid by her voluntarily. The appellant's counsel had another complaint also in respect of this item, namely, that the award of interest was not proper. It is pointed out that except at the time of filing the suit the mortgagee had not claimed repayment of the amount and that the wrong amount was also paid by her voluntarily. In these circumstances we hold that interest can be allowed to the defendant for the amount payable to her only from the date of suit and not from 1081. 3. Two other heads of complaint which the mortgagor has relates to the mortgagee's claim for value of improvements effected by the lessees in the said properties and the amount which the mortgagor or mortgagee will have to pay to the lessees on account of the return of the premium received from them. These questions cannot be satisfactorily disposed of without the lessees also being on the party array. For findings which would be binding on the lessees also, and which necessarily have to be binding on the lessees also for avoiding multiplicity of suits, it is necessary to have them on the party array. Therefore, we delete the directions which the court below has given in respect of these matters i. e., value of improvements effected by the lessees and the liability for the premium, and direct the plaintiff to implead the lessees in the suit and have the matter re-adjudicated with them on the party array. The mortgagee will furnish a list of the lessees within two weeks of the receipt of the records in the lower court and within four weeks thereafter the plaintiff will apply to have the lessees impleaded. 4. The mortgagor's last complaint related to the omission of the lower court to give any direction as regards mesne profits. This omission appears to us to be an inadvertent slip. If after a settlement of accounts it is found that nothing was due to the mortgagee on the date of suit the lower court will, of course, pass appropriate orders regarding the mesne profits to which the plaintiff may be entitled. 5. In A. S. No. 108 of 1955, the mortgagee's appeal, the main complaint is against the direction given by the lower court in respect of two sums of moneyreceived by the mortgagee from the Government on account of the acquisition of two plots out of the mortgaged properties. 5. In A. S. No. 108 of 1955, the mortgagee's appeal, the main complaint is against the direction given by the lower court in respect of two sums of moneyreceived by the mortgagee from the Government on account of the acquisition of two plots out of the mortgaged properties. The two amounts together come to Rs. 605. The direction in the mortgage document, Ext. XXIV, was that in lieu of the interest on the mortgage amount the mortgagee was to enjoy the usufructs of plaint schedule items 1 to 10, which are items 1 to 10 in the mortgage document also, and re-receive the michavaram due on item 11 which was then and is still outstanding on a kanapattom. Since the kanom tenant did not pay the michavaram the mortgagee brought O. S. No. 235 of 1065 of the Ernakulam Munsiff's Court for recovery of the arrears of michavaram. Although that suit was decreed by the trial court the mortgagee was not able to recover the arrears of michavarom decreed thereunder since execution was refused on the ground that the defendant in the suit was not the real kanomdar. The mistake arose because the defendant impleaded in O. S. 235 of 1065 was the person mentioned in Ext. XXIV as the kanomdar. It subsequently transpired that he was not the real kanomdar and his objection was upheld by the execution court. Later the mortgagee brought a suit against the mortgagor's family, as O. S. 266 of 1067 of the Cochin Munsiff's Court for michavarom due in respect of item 11 which the mortgagee was not able to realise on account of the mistake committed by the mortgagor in giving the name of the kanomdar in Ext. XXIV. This suit was also decreed in the mortgagee's favour and an appeal filed against the decree in it by one of the members of the mortgagor's family was also dismissed by the High Court. Thereafter, the person who filed the appeal in the High Court executed a sammathapathram in favour of the mortgagee allowing the latter to lack the decree amount to the mortgage amount. Subsequently, when the mortgagee received the compensation amount in the land acquisition case she adjusted that amount against the amount mentioned in the sammathapathram. In the plaint in this suit the plaintiff claimed that accounts should be settled on the basis that the compensation amount of Rs. Subsequently, when the mortgagee received the compensation amount in the land acquisition case she adjusted that amount against the amount mentioned in the sammathapathram. In the plaint in this suit the plaintiff claimed that accounts should be settled on the basis that the compensation amount of Rs. 605 had been received by the mortgagee and that she had to account to him for it. The mortgagee contended that, as the amount had been adjusted against the claim for michavarom decreed in O. S. No. 235 of 1065 and O. S. No. 366 of 1067 and forming the subject matter of the sammathapathram mentioned above, she was not liable to account for it. Her contention was repelled by the lower court which directed that she had to make good the amount to the mortgagor and that no credit could be given to her for the arrears of michavarom sued for and decreed in O. S. No. 235 and O. S. 366. Before us, it is contended by the mortgagee's counsel that either the adjustment made should be recognised or the mortgagee should be allowed to claim michavaram in respect of item 11 for the years 1062 to 1073 from which year alone the kanom tenant has been paying the michavarom to her. Although the mortgagee has obtained the two decrees in O. S. 235 and O. S. 366 it is admitted that she has not been able to realise any amount under those decrees. The mortgagor's contention in this court was that as execution of the two decrees has now become barred by limitation it is not open to the mortgagee to claim the amount comprised in those decrees. But the decree amounts in these cases are in respect of the michavaram due on account of plaint item 11 and is really a claim for interest on the mortgage amount. The decree amounts in the two cases are, therefore, really part of the mortgage amount and so the mortgagee is entitled to have the account settled at the time of redemption, taking into account the amounts due to her under those decrees also. The decree amounts in the two cases are, therefore, really part of the mortgage amount and so the mortgagee is entitled to have the account settled at the time of redemption, taking into account the amounts due to her under those decrees also. So far as the question of limitation is concerned, we may refer to the decision in Narayanan v Govindan (39 Cochin 505) wherein it has been held that defences to an action are not within the purview of the Limitation Act and that it is open to a mortgagor or mortgagee to include all transactions connected with the mortgage in the final settlement of accounts at the time of redemption. In Sukumaran Namburipad v. Kunhi Krishnan Nair (4 Select decisions (Cochin) page 611) also it has been held that a debt evidenced by a decree for arrears of michavarom is only part of the mortgage transaction and cannot be considered as an independent debt and that all accounts arising out of the mortgage transaction including the amount for which the decree for arrears of michavarom has been passed have to be settled in the suit for redemption. We are in respectful agreement with these decisions and hold that either the mortgagee is entitled to have the account settled on the basis that she has to get the michavarom for the years 1062 to 1073 from the mortgagor's family or that the adjustment made by her of the amount of Rs. 605 against the claim for michavarom has to be recognised. Since it is more advantageous to the mortgagor to recognise the adjustment the mortgagor's counsel stated at the time of hearing that, if we were of the opinion that one of these two things has to be done, he would elect to have the adjustment recognised. We therefore, hold that the accounts have to be settled on the basis that the mortgagee has not to account for the amount of Rs. 605 mentioned above, and that she has adjusted that amount in full discharge of the claim of arrears of michavarom due to her from 1062 to 1073. 6. The second point urged by the mortgagee's counsel relates to the order for costs. 605 mentioned above, and that she has adjusted that amount in full discharge of the claim of arrears of michavarom due to her from 1062 to 1073. 6. The second point urged by the mortgagee's counsel relates to the order for costs. Costs are within the discretion of the trial court and having regard to the contentions which the two parties advanced before that court we do not consider that the discretion has been wrongly exercised in this case.