Right of mortgagee to decree for sale.

Satyanarayana Rao, J.- This is an appeal by the first defendant against the decree of the Subordinate Judge of Coimbatore, granting to the plaintiff a preliminary mortgage decree.

On the 20th February, 1939, the first defendant executed a deed which is described as a usufructuary mortgage deed for a sum of Rs. 4,000. The property comprised in the mortgage is a terraced building in Coimbatore. Under this document it was stipulated that the mortgagee should in lieu of interest on the amount advanced enjoy the property mentioned, that is, the house as under a usufructuary mortgage. It further provided that

“Within a period of four years from this date, I shall pay you the above usufructuary mortgage amount and get return of the deed with endorsement of discharge thereon and along with the title deeds pertaining thereto. I shall also take possession of the undermentioned properties from you. If before the above period of four years I pay the principal sum you shall receive it. If I fail to pay the principal sum on the due date of the above 4 years you shall continue to be in enjoyment as under a usufructuary mortgage for the very aforesaid mortgage amount till it is paid. Besides, I shall pay the above amount on demand with interest thereon at the rate of four annas per hundred rupees permensem from the date of default to the date of the payment.”

The deed also recites that the mortgagee was put in possession of the property immediately, that is, on the date of the execution of the deed. On that very day, the plaintiff leased the property under a rental agreement to one Ramaswami Mudaliar who is examined in the case as P.W. 1 and the lessee agreed to pay a rent of Rs. 30 per mensem for the terraced building and he also stated in the rental agreement, Exhibit P-2 that he was put in possession of the property. The plaintiff alleged in the plaint that notwithstanding the recitals in the documents above referred to, the first defendant failed to deliver possession of the property to the plaintiff or to his nominee and that she had continued in possession without even paying any sum by way of rent or damages for use and occupation. On 3rd April, 1943, the first defendant sold the property to defendants 2 to 4 under Exhibit D-7 and they are impleaded as parties to the action. The plaintiff, therefore, seeks to recover from the defendants and the property, a sum of Rs. 5,949, Rs. 4,000 being the principal amount due under the mortgage and Rs. 1,949, as compensation for loss of possession from the date of the mortgage to the date of suit at Rs. 30 per rnensem or Rs. 360. per annum. The suit was instituted on the 19th July, 1944, and in the plaint, the plaintiff claimed that he was entitled to realise the amount of Rs. 5,949 by sale of the hypotheca and he also claimed a personal decree for the balance in case the proceeds of the hypotheca are not sufficient to satisfy the decree. The consideration for the mortgage was not disputed by the defendants in their written statement but they denied the ascertion of the plaintiff in the plaint that he had not been given possession of the property immediately after the deed was executed. They disputed the right of the plaintiff to claim compensation for loss of possession and also denied the right of the plaintiff to a decree for sale of the mortgaged property as claimed in the plaint. It was also alleged in the written statement that by his acquiescence in non-delivery, the plaintiff lost his right to sue for sale of the mortgaged property and that in any event the plaintiff is not entitled to claim more than Rs. 4,000 as per the agreement which, it is claimed, was reached between the parties on the 10th September, 1942, evidenced by a varthamanam of that date, whereby the claim under the mortgage and also under two other promissory notes was settled at a sum of Rs. 4,500 to be paid by the first defendant to the plaintiff. Immediately after the purchase of the property by defendants 2 to 4 under Exhi

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