JUDGMENT
Venkataswami, J.
1. This appeal is preferred against the judgment and decree of the learned single Judge in A.S. No. 350 of 1978 dated 6.10.1989.
2. The only point that arises for consideration in this appeal is whether the awarding of costs against the appellant in a suit for redemption is justifiable.
3. When the appeal came up for admission, having regard to the limited scope of the dispute between the parties, we have directed notice of motion. Accordingly, on receipt of notice, M/s. Pathy and Sundaram have entered appearance on behalf of the respondents. To enable the counsel for the respondents to get instructions we have adjourned the matter twice; finally by consent, we have taken up the appeal for final disposal. We heard the arguments of the learned Counsel on both sides.
4. The appellant is the first defendant in the suit. The suit was one filed by the respondents herein for redemption of a mortgage executed by defendants 2 to 8 in favour of the appellant. The suit for redemption of the mortgage came to be filed in the following circumstances. Defendants 2 to 8 as noticed earlier had executed a mortgage in favour of the appellant herein (first defendant) for a sum of Rs. 17,000 on 30.9.1969. Subsequently, defendants 2 to 8 sold certain items of properties to the respondents (plaintiffs). The respondents as purchasers of the said items of properties, have undertaken to discharge the mortgage in favour of the appellant. Pursuant to the undertaking, plaintiffs wanted to know the exact amount due under the said mortgage and therefore issued a notice calling upon the appellant to give the particulars of the amount due under the mortgage. The appellant did not give any reply on the ground that the sale in favour of the respondents (Plaintiffs) was void and as such they have no right to get the particulars. On the ground that the appellant was not prepared to give the particulars of the amount due under the mortgage, the respondents as plaintiffs, filed the suit for redemption. Pending disposal of the suit in the trial Court, the mortgagors viz., defendants 2 to 8 have sold the properties to the appellant and consequently the mortgage became discharged. In view of the discharge of the mortgage, the trial Court dismissed the suit for redemption, however, directed the appellant (first defendant) to pay the costs of the suit to the plaintiffs/respondents herein.
5. Aggrieved by the grant of costs, the appellant filed A.S. No. 350 of 1978 in this Court. The learned single Judge confirmed the judgment of the trial Court. Hence, the present Letters Patent Appeal.
6. Mr. R.S. Venkatachari, learned Counsel appearing for the appellant submitted that both the trial Court as well as the learned Single Judge erred in awarding costs even though the redemption suit was dismissed without properly exercising the judicial discretion in awarding costs. According to the learned Counsel, the respondents claimed the benefits of Section 6 of the Tamil Nadu Agriculturists Debt Relief Act 10 of 1975 after purchasing the property from the original mortgagor. As the appellant felt that the respondents are not entitled to such relief and the sale in their favour itself was void, the appellant did not give the particulars of the amount due under the mortgage. The learned Counsel further pointed out that the courts below failed to take note of the fact that the respondents (plaintiffs) have not deposited, the amount due under the mortgage while filing the suit. Therefore, the blame cannot be solely thrown upon the appellant for awarding the costs. He also cited a decision of this Court in Janakiammal v. Rathinam Asari (1974) 2 M.L.J. 350 in support of his contention that the proper provision to be looked into in the facts and circumstances of the case is Section 35 read with Order 34, Rule 10, C.P.C. and not Order 34 Rule 4, C.P.C. as observed by the learned Single Judge.
7. The learned Counsel appearing for the respondents on the other hand submitted that the concurrent view taken by the courts below does not call for interference.
8. After considering the rival submissions, we are of the view that there is force in the argument of the learned Counsel for the appellant. It is seen from the judgment of the trial Court that it has awarded costs mainly on the ground of conduct of the appellant (first defendant) and also on the basis of the equity. On appeal, the learned single Judge placing reliance on Order 34, Rule 4, C.P.C. has confirmed the view of the trial Court in awarding the costs. As contended by the learned Counsel for the appellant, the appellant alone is not to be blamed in the facts and circumstances of the case and further in awarding costs, the correct provision to be looked into is S.35 read with Order 34, Rule 10, C.P.C. Further, the ratio in the judgment in Janakiammal v. Rathinam Asari (1974) 2 M.L.J. 350 supports the contention of the learned Counsel for the appellant.
9. In the result, the Letters Patent Appeal is allowed and the judgment and decree in AS. No. 350 of 1978, confirming the judgment and decree in O.S. No. 228 of 1976 on the file of the Court of the Subordinate Judge, Cuddalore in so far as they relate to award of costs, are set aside. However, there will be no order as to costs.