This appeal arises out of a suit brought by the appellant in the City Civil Court to enforce an equitable mortgage.
A preliminary objection is taken to the maintainability of the appeal on the ground that it is barred by limitation. The decree of the Court below was passed on the 28th August 1940 and the application for certified copies of the decree and judgment was made on the 29th August. The requisite copy stamps were called for on the 26th September but as they were not deposited in time, the application was rejected on the 30th of the same month. A fresh application for copies was made on the 2nd October. A petition to restore the original application was also filed on the 3rd October. The Court below after hearing the objections of the respondent passed an order on the 11th October that copies be granted on the original application with a note thereon that they were granted in pursuance of the petition to restore the original application which had been rejected. The requisite stamp papers were deposited on the same day and the copies Were delivered on the 21st October. It is not disputed that if the time prescribed for filing the appeal is computed on the basis of the application originally filed, this appeal preferred on the 28th October, would be in time; but it is urged that the Court below had no power to restore the original application after it was rejected on the 30th September or to treat the fresh application filed on the 2nd October as a continuation of the original application. It is pointed out that R. 129 of the Civil Rules of Practice which provides that if the required stamp papers have not been deposited within the time prescribed in the rule, the application shall be struck off is mandatory and that there is no provision in the Rules for the restoration of an application so struck off. The appellant, on the other hand, contends that the Court below had the power to pass the order dated the 11th October under O. 9, R. 9 read with S. 141 of the Civil Procedure Code and that, even if these provisions are not applicable, it had inherent jurisdiction under S. 151 to treat the subsequent application as a continuation of the original application if it was satisfied that there was sufficient cause for non-deposit of the stamp papers required, and reliance is placed on the decision of this Court in Ramanuja Ayyangar v. Narayana Ayyangar(1) which certainly supports the contention. There also an application for copies was struck off under the copyist rules for non-deposit of the required stamp papers, and a petition was put in for restoration of the previous application which was ordered and copies were granted. It was objected that an appeal filed with the copies so obtained was barred by time but this Court held that the later application must be considered to be a continuation of the previous application for the purpose of computing the time prescribed for filing the appeal. No doubt the judgment does not state under what provision the Court has the power to treat a petition for restoration of an application for copies dismissed for default as a continuation of the previous application, but the decision clearly concludes the point in favour of the appellant. The preliminary objection therefore fails and the appeal must be held to have been preferred in time.
On the merits, the only question argued was whether the respondent was entitled to claim the benefits of the Madras Agriculturists Relief Act. Although the plaint which was filed long after the Act came into force definitely alleged that the respondent deposited as collateral security the title deeds relating to his house and ground described in the schedule, the respondent did not specifically deny the allegation but contented himself with merely pleading that he was an agriculturist as defined in the Act and as such was entitled to relief under S. 9 thereof. He filed, however, a supplemental written statement in which he sought to raise two additional pleas. The first of these which alone is material here was as follows:
“This defendant states that the property mortgaged to the plaintiff was only the land and the document with the plaintiff relates only to the land and not to the superstructure.”
It is the respondent's case that he had purchased the superstructure of the house from a third party under a separate instrument before he purchased the site under Exs. C. and D which he deposited with the appellant. On this basis the plea was sought to be raised that inasmuch as the title deeds deposited were only those relating to the purchase of the site the equitable mortgage was only of the land and not of the superstructure. This plea was of course put forward to get over the difficulty created by S. 4(d) of the Act which provides that nothing in the Act shall affect any debt contracted on the security of house property alone in a municipality. This provision was apparently overlooked when the original written statement was filed which, as already stated, contained no denial of the specific allegation in the plaint that the suit debts were secured on the house and ground described in the schedule attached to the plaint. The Court below passed an order on 27th February 1940 refusing to allow this supplemental written statement to be filed so far as it related to this plea on the ground that it was a statement of fact which must have been within the knowledge of the respondent at the time when he filed his previous written statement. Notwithstanding this order, the learned Judge considered the plea in his judgment and held that as the title deeds (Exs. C and D) related only to the land and not to the superstructure there was no equitable mortgage of the house, and that the respondent was entitled to the benefit of the Act. This decision is clearly unsustainable. The learned Judge having refused in his earlier order to allow this point to be put forward by way of an additional written statement ought not to have allowed it to be put forward at any subsequent stage. Indeed it was represented by the appellant's junior Counsel who appeared for him in the Court below that the point was not even argued at the hearing and that the learned Judge dealt with the point by mistake in the judgment pronounced two weeks after the case was closed. It is, however, urged for the respondent that the question is one of pure law turning upon the construction of the title deeds (Exs. C and D) and the letters Exs. I and II which refer to the deposit of those deeds by way of collateral security. I cannot agree, for if the respondent had himself put up the superstructure on the site of which he was a tenant, and subsequently purchased this site from the landlord, as suggested for the appellant, the title deeds though relating only to the land would clearly cover the house, and their deposit would create an equitable mortgage of the entire property consisting of the ground and the superstructure standing thereon. The respondent, however, stated in his deposition that he had purchased the superstructure for Rs. 22 or Rs. 23 from a third party under a separate unregistered sale deed which he had in his possession. This deed was not produced and no evidence was let in on this matter on the side of the appellant. If this matter was properly raised and put in issue, it might have been possible for the appellant to show that the alleged purchase was not true and that the respondent himself had put up the superstructure. It will thus be seen that the question is not one of law but really depends on facts. Indeed, the respondent's learned Counsel strongly relied on the evidence of the respondent already referred to and submitted that it should be accepted as there was no evidence contra, which shows the untenability of the contention that the plea involves a pure question of law. In these circumstances, the finding of the lower Court that the equitable mortgage comprised only the land and not the superstructure because the title deeds covered only the land and not the building cannot be allowed to stand as a finding on a pure question of law.
Assuming however that it is open to the Court to go into this matter notwithstanding its exclusion from the scope of the trial by the order dated 27th February 1940, I am satisfied that the letters (Exs. I and II) which refer to the deposit of the title deeds show that it was intended to create an equitable mortgage in respect of the whole house property. It is no doubt true that Ex. II refers in one place to the title deeds “Of my land having been deposited as security” but in another place it states that the land and superstructure thereon have been given as collateral security. It was suggested that, as Ex. II was given at the time of the second loan, the recital that the land and superstructure had been given as collateral security must be understood as referring to that transaction only, and not to the earlier loan. I am unable to read Ex. II in this sense. Admittedly, there was no deposit of any fresh title deeds at the time of the second loan, and if an equitable mortgage was intended to be created in respect of both the land and the superstructure in respect of the second loan, it could only be on the strength of the original deposit of Exs. C and D which related only to the land. It is therefore clear that the title deeds deposited were regarded as the title deeds relating to both the land and the superstructure and as creating an equitable mortgage in respect of both the loans. This is made still more clear by Ex. I which refers to the deposit of documents relating to the “above mentioned house site,” the expression ‘above mentioned’ referring obviously to the house described by its municipal number at the head of the letter. I am not therefore prepared to accept the respondent's evidence that there was a separate sale deed for the superstructure and that he deposited only the sale deed relating to the land at the time of the first loan, as he had no intention of creating an equitable mortgage of the superstructure.
For these reasons, I hold that the respondent is not entitled to claim the benefit of the Act although he is an agriculturist and that the appellant is entitled to a mortgage decree in respect of the entire house including the superstructure. Subject to these modifications, the decree of the lower Court will stand. The appellant will have his costs both here and below.
Decree accordingly.
N.R.R