R. Mahadevan, J.

1. This Appeal is filed against the judgment and decree dated 28.02.2003 made in O.S. No. 5 of 2002 on the file of the Additional District and Sessions Judge, Fast Track Court No. II, Salem, wherein the trial Court passed the preliminary decree in a money suit. The appellant herein was the sixth defendant, the first respondent herein was the plaintiff, and the respondents 2 to 10 are the defendants 1 to 5 and 7 to 10 in the suit before the trial court. For convenience, the rank of the parties before the trial court is maintained infra.

2. The averments made in the amended plaint before the trial Court are as follows:

(i) The plaintiff is a money lending financial concern, registered under the Partnership Act. The defendants 1 to 4, who are brothers, borrowed Rs. 2,50,000/-, Rs. 1,00,000/-, Rs. 1,00,000/- and Rs. 50,000/- and executed pro-notes on 10.10.1987, 23.10.1987, 12.12.1987 and 15.12.1987 respectively in favour of the plaintiff agreeing to repay the same with interest at Rs. 1.75 per hundred per month i.e., at the rate of 21% per annum. The amounts were lent by cheque either in favour of one or the other of the four brothers, viz., defendants 1 to 4. On 12.10.1987, the defendants 1 to 4 had deposited the documents of title of their properties along with Encumbrance Certificate with plaintiff, thereby creating an equitable mortgage. Apart from the above two documents, a copy of decree dated 21.04.1987 in O.S. No. 203 of 1987 was deposited on 16.12.1987 making the sale deed dated 01.03.1974, a prior title deed.

(ii) On 16.08.1992, the defendants 1 to 3 took from the plaintiff, the original title deed dated 01.03.1974, stating that they would use it to procure buyers in order to discharge debts secured by the immovable property. But they had given the original sale deed to the sixth defendant bank in order to create equitable mortgage. Hence, the sixth defendant is a subsequent mortgagee.

(iii) The plaintiff's partner C.S. Devarajan (deceased fifth defendant) had also lent to defendants 1 to 4 in his individual capacity a sum of Rs. 3,00,000/-. Hence, C.S. Devarajan is added as subsequent mortgagee (5th defendant). Since the 5th defendant died pending suit, his legal representatives have been impleaded as defendants 8 to 10 in this suit.

(iv) The defendants 1 to 4 have been adjudged insolvents as per order in Insolvency Cases 6/1993 and 7/1993 - Additional City Civil Judge Court, Bangalore City. Hence, the official receiver, in whom the assets of the insolvents vest and who is the administrator of the estate of the insolvents has been added as 6th defendant.

(v) In the above circumstances, the plaintiff is constrained to file this suit for preliminary decree directing the defendants to deposit the total sum of Rs. 5,80,062.50p together with subsequent interest at 21% per annum and costs, charges and expenses within the time fixed by the Court and in default of deposit, ordering sale of the mortgaged properties and from out of the sale proceeds pay all sums due to plaintiff upto date of such payments.

3. The sixth defendant before the trial Court denied all the averments made in the plaint and contended that the sale deed dated 01.03.1974 was in respect of larger extent of property and as per the allegations in the plaint, the said property belongs to the defendants 1 and 2. By virtue of the final decree, the defendants 1 to 4 together got the property mentioned in the plaint and the other portions of the property covered by the sale deed dated 01.03.1974 was allotted to the share of their mother Mohini Bai Amarsingh. It is true that the defendants 1 to 4 have been adjudged as insolvents and their properties have been ordered to be vested with the official receiver. The defendants 1 to 4 were doing business under various Firms and the defendants, their wives and mother are partners in one or other Firms and they were enjoying credit facilities with this defendant for a long time and they have given the suit