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1964 DIGILAW 191 (KER)

Parameswaran Namppori v. Varki

1964-07-29

M.MADHAVAN NAIR, M.S.MENON

body1964
Judgment :- 1. This appeal has arisen in a suit instituted by the appellant for redemption of a usufructuary mortgage under sub-sections (1) to (5) of S.11 of the Kerala Agriculturists Debt Relief Act, XXXI of 1958 (hereinafter called the Act). 2. The principal amount secured by the mortgage is Rs. 980/-; and it is stipulated in the deed that the usufructs of the property will be taken by the mortgagee for interest on Rs. 533/- odd and that for the balance of the mortgage amount, viz., Rs. 446 as. 3 ps. 3, the mortgagor will pay interest at 12% per annum. The mortgagor contended that in regard to the interest thus payable, he is entitled to the benefits of S.5 of the Act, and that, as he has already paid interest exceeding in the aggregate a moiety of the principal sum, he is not liable to pay any further amount towards interest. Those contentions have been accepted by the Munsiff and in execution of his decree the mortgagor has taken possession of the property. On appeal by the mortgagee the Subordinate Judge, Meenachil, has overruled the contentions of the mortgagee, who challenges the correctness thereof in this Second Appeal. 3. Those contentions have been accepted by the Munsiff and in execution of his decree the mortgagor has taken possession of the property. On appeal by the mortgagee the Subordinate Judge, Meenachil, has overruled the contentions of the mortgagee, who challenges the correctness thereof in this Second Appeal. 3. Sub-section (2) of S.11 of the Act provides: "(2) Notwithstanding that the period of the mortgage has not expired, the mortgagor shall on application be entitled subject to the provisions of sub-sections (3) and (4), to recover the property mortgaged on depositing in the court - (a) one half of the mortgage amount, (b) where payment of interest to the mortgagee has been stipulated for, in respect of the principal amount secured by the mortgage or any portion thereof, in addition to the usufruct from the property, or in respect of any other sum payable to the mortgagee by the mortgagor in his capacity as such and there has been arrears of such interest, such arrears; and (c) the value of improvements, if any, effected subsequent to the date of the mortgage by the mortgagee in the property mortgaged, as determined by the Court." The provision is plain that, where the mortgage deed stipulates for payment of interest to the mortgagee on any portion of the mortgage amount in addition to the usufruct from the property, any arrears of "such interest" have to be deposited along with a half of the mortgage amount before the mortgagor can recover the property mortgaged. The provisions in the mortgage deed fall squarely within the four corners of the aforesaid subsection. 'Such interest' in the sub-section can mean only the interest which has accrued as per the stipulations in the concerned mortgage deed. There is no provision to scale down such arrears. 4. S.11 is named in the Act as a "Special provision in respect of usufructuary mortgages", indicating thereby that it is an exception to the general provisions of the Act among which has to be counted S.5 relating to calculation of interest on debts payable under the Act. The canon of construction has always been that a general provision cannot control a special provision in a statute. 5. The canon of construction has always been that a general provision cannot control a special provision in a statute. 5. In Thoma v. Devasia 1962 KLJ.151 it is held that since the amount of a mortgage, even when it comes within the purview of S.11 of the Act, is a 'debt', S.5 of the Act is ipso facto attracted to its discharge under any provision of the Act. We are afraid that such a contention ignores the special character of S.11, which is a self-contained provision, and the plain expression of sub-section [2] thereof. We hold the ratio in Thoma v. Devasia 1962 KLJ.151 incorrect and overrule the same. 6. It follows that this appeal has no merit. The initial deposit that ought to have been made by the mortgagor will be recalculated to include all arrears of interest accrued upto the date of the mortgagor's taking possession of the property; and on the deficit in the deposit made by the appellant before he took possession of the property he will pay interest at 6% per annum from the date of his taking possession. If such amount is not paid within two months of this date the respondent can realise the same in execution in part-enforcement of his mortgage. We make no order as to costs here. Dismissed.