YASODAIAMMAL DIED Vs. RAJALAKSHMI AMMAL

JUDGEMENT

(1.) ?This appeal is filed by the 3rd defendant in the suit O.S. 175 of 1979 on the file of the Subordinate Judge of Coimbatore.

(2.) THE facts which are necessary for the disposal of this appeal can be briefly stated as follows: THE first respondent herein, who is the plaintiff in the suit, filed the suit for recovery of a sum of Rs. 89632-50 on the basis of a mortgage deed dated 3.2.1965 executed by one Sankarappa THEvar and his son, the first defendant, agreeing to pay interest at 12 per cent per annum. Subsequently, Sankarppa THEvar died and the first defendant is his only legal heir and legal representative. THE second defendent is a subsequent mortgagee of the property on the same date as the plaintiff. THE 3rd defendant purchased item 2 of the hypothecal in court auction in or about 1974. Hence they were impleaded as parties in the suit.

(3.) THE above view has also been affirmed by the latter decision, viz. 1980 T.N.L.J. 402, referred to above wherein the learned Judge laid down the principle as follows ? ?If there are no equities in favour of such a party, the decree holder is, of course entitled to sell the properties in any order he chooses, of course, subject to directions of court. If an auction purchaser at a court sale makes out a case that he was a bona fide purchaser for value of the property without notice of the prior mortgage or cnarge, the court may, in its discretion, apply the principle of marshalling on a consideration of the particular equity involved. This has been recognised by the Div ision Bench of the Patna High Court in A.I.R 1953 Patna. 193. Later, another Bench of the same High Court in AIR 1962 Pat 236, after referring to the aforesaid earlier Bench judgment, also took the same view, S.K. Jha J. of the same High Court in AIR 1975 Pat. 223 has taken the view that where no order of sale of the mortgaged property has been prescribed by the mortgage decree, the executing Court, has in certain exceptional circumstances where equity demands it, a discretion to regulate the order in w hich the mortgaged properties ought to be sold and the power of the executing court in this regard is very limited and is intended only for the purpose of adjusting equities between the parties in exceptional cases. Venkatadri J. in ILR 1965-1 Mad. 154 held that there is a discretion vested in the court in fixing the order in which the property should be put up for sale, and this discretion is to be exercised in a reasonable and just manner consistent with the equities of the case?.