MATHAI Vs. ZACHARIA

JUDGEMENT

(1.) This second appeal is brought by the assignee decree holder in O.S. 676 of 1111 of the Chengannur District Munsiffs Court against the concurrent decisions that court and the District Court of Mavelikara passed refusing execution of the decree at his instance. He was defendant 2 in the suit. The decree is dated 9.4.1117 and it was passed on foot of a simple mortgage, defendant 1 had executed in favour of the original decree holder. Defendants 2 to 6 were impleaded in that suit as subsequent encumbrancers. The bond put in suit created the first mortgage over the property. The decree directed realization of the debt personally from defendant 1 and by the sale of the mortgaged property. Long prior to the institution of that suit defendant 2 had obtained a decree in O.S. No. 868 of 1103 on the file of the Thiruvella District Munsiffs Court on the puisne mortgage in his favour and in execution thereof had purchased the mortgaged property subject to the prior (first) mortgage. That court purchase was in 1108. On 1.11.1120 defendant 2 got the decree in O.S. 676 of 1111 assigned in his favour and on 9.11.1120 together with the original decree holder filed the execution application giving rise to this second appeal. On notices being given of the application to the defendants, defendant 5, one of the persons impleaded as a puisne encumbrancer, objected to the execution on the ground that the purchase of the prior mortgagees decree by the puisne mortgagee-auction-purchaser brought about the extinguishment of the decree and that the execution application should therefore be dismissed as the decree itself had ceased to exist. Defendant 2 resisted the contention and even contended that defendant 5 had no locus standi to oppose the application. The learned District Munsiff upheld the objection raised by defendant 5 and passed an order dismissing the execution application. The decree was also recorded as satisfied. The Munsiffs order is brief and clear and it may well be quoted here. The 5th defendant has filed this objection. The decree is against the first defendant and defendants 2 onwards are subsequent encumbrancers. The second defendant is the assignee decree holder. The second defendant purchased the properties in court sale in O.S. No. 868 of 1103 of the Thiruvalla Munsiffs Court subject to this decree debt. He has therefore become liable to pay the debt and is the representative of the defendant. The decree has therefore been satisfied. This contention of the defendant petitioner has not been seriously disputed at the argument. It was argued that even if the assignee decree holder is a representative of the defendant prior charge subject to which the properties were purchased in O.S. 868 of 1103 was only Rs. 190 and a moiety thereof and interest will together amount to Rs. 285 and that there remains a large balance in the decree debt and that the assignee decree holder has not got possession of the property purchased in court sale owing to the obstruction at the instance of the first defendant. Since the purchase was subject to the prior charge and interest the debt has been satisfied when the purchase was made. The argument therefore cannot be accepted. The objection petition is in the circumstances allowed and the suit is struck off. Defendant 2 took the matter in appeal before the Mavelikara District Court in A.S. 235 of 1121 and the learned Temporary Second Judge who heard the appeal dismissed it confirming the Munsiffs decision. In so doing while referring to the ground on which the learned Munsiff rested his decision the learned Second Judge held that the case fell within the mischief of the second proviso to O.21 R. 16 C.P.C. and based his decision of the appeal on that ground. As a result of that the best part of the argument in the second appeal happened to be confined to the question how far the learned Judges view is correct. R. 16 of O.21 relates to applications for execution by transferees of decrees and proviso 2 to the said rule enacts that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others. Here the decree under execution grants personal relief only against defendant 1, the executant of the mortgage and it is therefore difficult to hold that decree is one for payment of money against two or more persons. The true construction of this proviso has been the subject of much controversy but it has now come to be recognised that the true meaning to be given to it is what Sir Asutosh Mookerjee, J. attributed to it in Laldhari Singh v. Manager, Bhabatpura (1911) 12 I.C. 70. In that case the learned Judge said:- - The plain meaning of the proviso is, that it is applicable only to the case of a decree for payment of money personally by several persons jointly: in other words the expression a decree for money against several persons signifies a personal decree for the payment of money against two or more defendants jointly. Among cases which follow this interpretation mention may be made of the decisions in Rajarathna Naidu v. Ramachandra Naidu AIR 1924 Mad. 901 and Md. Abdul Kadir v. Abdul Kadir AIR 1926 Mad. 1141 . Even earlier to the decision in 12 I.C. 70 the Calcutta High Court and in Lalla Bhagum v. Holloway (1885) ILR 11 Cal. 393 said that the proviso referred to a decree for money personally due by two or more persons and that it did not apply to a case where a defendant from whom nothing was personally due purchased the decree. In Panachanti Pomaji Marwadi v. Sundra Bai (1907) ILR 31 Bom. 308 the Bombay High Court held that the proviso applied only where in the decree there was a distinct order upon the defendants personally to pay the money. In the two Calcutta cases and in the Bombay decision it was the old S. 232 that came up for interpretation. In the old Code the words in proviso 2 were for the money; but those words have now been replaced by the words for payment of money. In AIR 1924 Mad. 901 and in Mt. Asia Bibi v. Malk Azir Ahmad AIR 1932 All. 704 it has been pointed out that the change was intended to emphasise that the proviso was confined to cases of personal decrees. There was some conflict in the Travancore High Court about the true interpretation of the proviso, but in Anthony v. Krishnan 1947 T.L.R. 603 a Division Bench held that the proviso can apply only in cases where there is a decree for payment of money against two or more persons and where one of them has taken an assignment of the decree in his favour. The same view was taken in Cochin in the case reported as Dasan v. Kuruvanchan (1927) 19 Cochin L.R. 23. The Travancore decision reviews the decisions bearing on the question both in Travancore and outside fairly exhaustively.

(2.) In the Travancore and Cochin cases mentioned above the puisne mortgagee who had obtained an assignment of the prior mortgagees decree was allowed to execute the decree as in either case the puisne mortgagee-purchaser was not personally liable for the debt.

(3.) Had it not been for the superimposition of a purchase by defendant 2, the appellant, of the equity of redemption of the mortgaged property in execution of the decree he obtained on his mortgage we would have had to allow the second appeal and permit the appellant to execute the decree. The learned Munsiff fully comprehended the bearing of that fact on the decision of the case, but unfortunately the learned appellate Judge thought it fit to base his conclusion on the second proviso to O.21 R. 16 which we have shown cannot apply to a case where there is no decree for payment of money against two or more persons jointly. It was the view taken by the learned Judge in the court below that the contesting respondent (4th respondent defendant hereinafter referred to as the respondent) was trying to support. We have therefore necessarily to refer to the cases to which our attention was invited by the respondents learned Counsel.