K.M. NATARAJAN, J,

This appeal is filed by the 3rd defendant in the suit O.S. 175 of 1979 on the file of the Subordinate Judge of Coimbatore.

2. The facts which are necessary for the disposal of this appeal can be briefly stated as follows: The first respondent herein, who is the plaintiff in the suit, filed the suit for recovery of a sum of Rs. 89632-50 on the basis of a mortgage deed dated 3.2.1965 executed by one Sankarappa Thevar and his son, the first defendant, agreeing to pay interest at 12 per cent per annum. Subsequently, Sankarppa Thevar died and the first defendant is his only legal heir and legal representative. The second defendent is a subsequent mortgagee of the property on the same date as the plaintiff. The 3rd defendant purchased item 2 of the hypothecal in court auction in or about 1974. Hence they were impleaded as parties in the suit.

3. The second defendant in the suit remained ex-parte. The first defendant in his written statement claimed benefits of Act. 4 of 1938 and also partial discharge to the extent of Rs. 8000. The third defendant, who is the appellant herein, had contended in her written statement that she is a prior mortgage of item 2 of the