A debtor against whom an action has been brought, and who has had notice of assignment of the debt, may interplead as to part only of the claim, and may dispute the residue.

CHANDRASEKHARA SASTRY, J.

( 1 ) THIS is an appeal by the Plaintiffs against the judgment and decree in O. S. No. 11/58 on the file of the District Court, West Godavari at Eluru dismissing the suit as not maintainable. The suit was an inter pleader suit instituted under Section 88 and Order 35 C. P. C.

( 2 ) THE plaintiffs borrowed Rs. 40,000 under a registered mortgage deed, dated 14-7-43 executed by them in favour of late Buchiramaiah and defendants 1 to 3. Buchiramaiah is the father of defendants 1, 2, 4 and 5. The 3rd defendant was the wife of the 1st defendant. The 3rd defendant died pending the suit and defendants 6 to 9 were added as her legal representatives. It is alleged in the plaint that several payments were made towards the debt and that they were endorsed on the mortgage bond. The interest stipulated in the mortgage bond was Rs. 0-10-0 per cent per mensem, compound. But it is claimed that the plaintiffs are agriculturists and that the debt had to be scaled down under Madras Act IV of 1938, and that, if so scaled down, the balance due was only Rs. 30,000, In paragraph 5 of the plaint, it is stated that the 2nd defendant issued a notice on 9-4-52 stating that defendants 1, 2, 4 and 5 and their mother are entitled to a 1/5th share each in the amount due under the mortgage bond. It is further averred in the plaint that the plaintiffs are not in a position to know the real claimants entitled to receive the sum of Rs. 30,000 in question. That was why the suit was filed under section 88 read with Order 35 C. P. C. The plaintiffs prayed;" (A) to direct the defendant to interplead together concerning their claims to the amount now being deposited by the plaintiffs and to determine the rightful claimants that are entitled to receive the amount due under the bond; (b) to authorise some or all the defendants to receive the said amount pending the litigation; (c) to discharge the plaintiffs of their liability to either of the defendants in relation thereto under the mortgage bond, dated 14-7-1953; (d) to grant costs of this suit; and (e) to grant all other reliefs which the Honourable Court deems fit under the circumstances of this case. "

( 3 ) EACH of the defendants 1 to 5 filed separate written statements. Defendants 6, 7 and 9, the legal representatives of the 3rd defendant, filed an additional written statement. The 8th defendant filed a memo adopting the written statements filed by the 3rd defendant and defendants 6, 7 and 9. Besides asserting their separate claims to the debt due under the suit mortgage bond, they denied the allegation that the plaintiffs are agriculturists and that the debt has to be scaled down under Madras Act IV of 1938. One other plea was that, on 12-7-1957, the amount due under the mortgage bond was ascertained to be Rs. 57,171-5-0 after making the several adjustments as to principal and interest.

( 4 ) THE following issues were framed by the lower Court: (1) Whether the suit as framed is maintainable? (2) Whether the suit is properly valued and court-fee paid is proper? (3) Whether the plaintiffs are entitled to the benefits of Act IV of 1938? (4) Whether there was a settlement of the amounts due on the mortgage for Rs. 57,171-05 np. on 12-7-57? (5) If so, whether the settlement can be reopened? (6) Who are the claimants to the 1/5th share of late Buchiramaiah, one of the mortgagees? (7) Whether defendants 4 and 5 are necessary parties to the suit? (8) Whether the third defendant is entitled to any portion of the suit amount? (9) Whether this Court has no jurisdiction to entertain this suit? (10) To what relief are the plaintiffs entitled?"

( 5 ) IN the lower Court, the defendants conceded under Issue No. 9 that the Court had jurisdiction to entertain the suit. The only other Issue tried by the lower Court was issue No. 1. On that issue, the lower Court held that, since the plaintiffs claim that they are agriculturists and that the debt has to be scaled down under Madras Act IV of 1938 and that, i

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