CHERIYAN Vs. MEERAKHAN

JUDGEMENT

(1.) The suit out of which this appeal arises was instituted by the appellant to enforce payment of certain amounts due under two chitty hypothecation bonds which he failed to realise in enforcement of two prior decrees obtained on them by reason of his omission to implead in those suits the owners of the equity of redemption of certain items among the hypothecated properties. In execution of the decree obtained on the second bond all the items constituting the hypotheca were brought to sale subject to the prior charge of all but an amount of Rs. 137-3-8 due under the decree obtained on the first bond, and himself purchased them. The various items were sold in separate lots and even after the sale of all the items there was still a balance of Rs. 184-11-6 to be realised under the decree that was being executed. When the appellant proceeded to take possession of the properties Defendants 2 and 3 in the present suit successfully obstructed the delivery of items 1, 2, 4 and 5 in the (present) plaint on the ground that long prior to the institution of the suit they had become owners of the equity of redemption over these items. The four items referred to above fetched altogether Rs. 871-12-0 at the sale. Item 3 in the present plaint consisted of three buildings on item 1, which defendants 2 and 3 constructed after that item came into their possession. The appellant brought the present suit to realise the balance due under the two bonds after giving credit for the sale price of the other items and the amount under the decree obtained on the first bond subject to which the sales were held. Defendant 3 resisted the suit on various grounds, but all of them except the one as to the quantum of the balance due failed before the Trial Court. Against his claim for Rs. 1536-Chs. 19-8 cash made in the plaint, the learned Munsiff gave the plaintiff decree for Rs. 463-21-1 alone and the appeal is with respect to the portion disallowed.

(2.) Defendant 3 has preferred a memorandum of cross objections reiterating all the grounds on which he resisted the suit. It was contended (1) that a fresh suit on the hypothecation bonds with respect to the certain items alone of the hypotheca was not maintainable; (2) that the appellant's purchase of certain items comprised in the hypotheca had broken the integrity of the charge and that plaint items 1, 2, 4 and 5 should therefore be made liable only for the proportionate amount chargeable over those items and not for the entire outstanding balances; (3) that O. II R. 2 C.P.C. was bar to the suit and (4) that satisfaction having been entered of the prior decree to the extent of the sale price these items also the appellant was not entitled to proceed against them over again. As these points touch the very maintainability of the suit they must first be dealt with before discussing the point raised by the appeal.

(3.) As for the first point, the charge having been extinguished to a certain extent by the appellant's purchases that were not assailed, it is difficult to appreciate the argument that the present suit should have been with respect to or as against all the items comprised in the hypotheca. There has taken place an abatement of the mortgage to the extent proportionately chargeable on the items whose purchases stand. The appellant is the owner of those items and he cannot be their owner and at the same time a charge holder with respect to them. As Defendants 2 and 3 were left out the previous suits it is open to them to redeem the plaintiff and in such a suit all the items comprised in the security will certainly have to be included. But the present argument that in a suit for sale by the hypothecatee after he has become the owner of certain items comprised in the hypotheca those items should again be brought to sale is absolutely untenable.