VADLAMANI KALIDAS Vs. FAKIR MOHAMMAD SAHEB

JUDGEMENT

(1.) This second appeal arises out of J. A. No.169 of 1946, an application filed by the appellant for passing a final decree in his favour. One V. Kama Sastri filed O. S, No. 28 of 1940 on the file of the Court of the District Munsif of Amalapuram to enforce the mortgage dated 18-3-1913. Defendants 1 to 6 were either the mortgagors or their legal representatives. Defendant 7 was the subsequent purchaser of portion of the hypotheca. Defendants 8 and 9 were the subsequent mortgagees. Defendant 9, one of the puisne mortgagees impleaded in the suit prayed in his written statement for a decree on the foot of his mortgage. A preliminary decree was passed on 11-3-1943. Defendant 9 paid the amount due to the plaintiff. Having paid the amount, he filed I. A. No. 179 of 1944 for passing a final decree in his favour not only for the amount due under the suit mortgage but also for the amount due under the subsequent mortgage held by him. On 30th March 1944, the learned District Munsif dismissed that application on the ground that there was no provision in the preliminary decree directing the passing of final decree for the consolidated sum of the two mortgages, one in favour of the plaintiff and the other in favour of defendant 9. But he held that defendant 9 was entitled to a final decree in his favour for the sum which he paid over to the prior mortgagee. On the same day, defendant 9 filed I. A. No. 363 of 1944 for amending the preliminary decree so as to bring it in conformity with form No. 9 of Appendix D of Schedule 1, C. P. C. Pending that application, the receiver appointed for the administration of the mortgagor's estate paid the amount due on the first mortgage with subsequent interest to defendant 9. Defendant 9 received that amount without prejudice to his rights, which can only mean Without prejudice to his rights which he was agitating in the aforesaid application. Full satisfaction of the plaintiff's mortgage claim was recorded on 1-8-1944. The application for amendment was disposed of by the learned District Munsif on 3rd September 1945. He allowed the amendment and directed the decree to be brought in conformity with Form No. 9 of Appendix D of Schedule 1, C. P. C. He also rejected the plea that the application should not be allowed as full satisfaction of the decree was recorded. After the decree was amended, he filed the present application for the passing of the final decree. But that was dismissed by another District Munsif on the ground that the application for final decree at the instance of defendant 9 was not maintainable as full satisfaction of the preliminary decree was recorded. When an appeal was filed to the Subordinate Judge, he confirmed the same. Defendant 9 preferred the above second appeal. The respondents are not represented by counsel.

(2.) The rights of a puisne mortgagee who is impleaded as defendant to a suit on the prior mortgage are governed by Order 34, Rule 4(4), C. P. C. It reads :

(3.) The 'aforesaid provisions show that the mortgagee, who is the plaintiff, is ordinarily in charge of the suit. In case the mortgagor makes default in paying the amount declared due to him, he will have to apply for the passing of a final decree and for the sale of the property. In a particular contingency, the second mortgagee is entitled to apply for a final decree that is, when he pays off the first mortgagee and thereby subrogated to his right. In that contingency, he is entitled to treat the suit brought by the first mortgagee as one for his benefit. He can apply to the court under Clause 5 of Form No. 9 to keep the plaintiff's mortgage alive for his benefit and to apply for a final decree in the same manner as the plaintiff might have done under Clause 4. But can a puisne mortgagee, who obtained a preliminary decree in his favour also apply for the passing of a final decree if the first mortgage of the plaintiff is paid off by the mortgagors? If he cannot, it may cause unexpected and undeserved hardship to the puisne mortgagee. A puisne mortgagee, who is made a party to a suit by a prior mortgagee, may agitate his rights in that suit and get a preliminary decree for payment. The suit may drag on for a number of years and if the mortgagors pay off the first mortgagee, the rights of the puisne mortgagee to institute another suit therefor may get barred.