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Madras High Court
Kunhi Mannan vs Chali Vaduvath And Ors. on 16 July, 1891
Equivalent citations: (1891) ILR 14 Mad 494
Bench: M Ayyar, Shephard


JUDGMENT

1. The only question raised is with regard to the money originally secured by Exhibit I. The decree as framed is made without prejudice to that mortgage, but the fact is overlooked that this mortgage is merged in the decree which led to the sale sought to be set aside. The proper decree should be as follows:–“We declare that the plaintiff is entitled to the property notwithstanding the sale but subject to a charge in favour of the fifth defendant on the property sold for so much of the decree amount as relates to the money secured by Exhibit I with interest thereon at the rate of 6 per cent, per annum from 22nd October 1887 up to date of payment.” The suit was substantially a suit for a declaration, and the lower Appellate Court was probably in error in directing the payment of Rs. 32. But we have no power to interfere.

2. The appeal has substantially failed and therefore the appellant must pay the respondents’ costs


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