R S SUBBIAH CHETTIAR Vs. SEERANGA CHETTIAR

JUDGEMENT

(1.) A question of contribution under Section 82, T. P. Act, is the subject-matter of controversy in this second appeal which arises out of a suit by the present respondent for a sum of Rs. 1327-14-0 being two-thirds of the price of the property lost by him.

(2.) One Arumugham Chettiar was the owner of the two items of properties and he mortgaged both of them to Komaran Chettiar on 3-11-1930. On 5-9-1938 Arumugham Chetty sold item 1 to the plaintiff. In execution of a money decree against Arumugham Chetti, item 2 was purchased by the fourth defendant who is the appellant in this second appeal. After this decree, the mortgagee, Komaran Chettiar filed O. S. No. 647 of 1944 on the file of the lower Court for realisation of the sum of money due under the mortgage of 3-11-1930. In that suit both present plaintiff and the fourth defendant were made parties, the plaintiff being the fourth defendant and the fourth defendant being the fifth defendant in O. S. No. 647 of 1944. It may he mentioned in this connection that the plaintiff was ex parte whereas the fourth defendant contested the suit and in the decree that was passed therein, Ex. A-1, paragraph 6 stated as follows:

(3.) Mr. V. C. Viraraghavan for the appellant contends relying upon the decision in -' Satya Kripal v. Gopi Kishore', 6 Cal WN 583 (A), that in so far as a decree in O. S. No. 647 of 1944 provided that the second item be sold last, there is a judicial decision which has remained in force and that the second item cannot be made liable for the rateable contribution. What happened in that case was this. Four items of properties were mortgaged for securing a debt and the mortgagee sued on his mortgage for realisation of the money. By the decree, it was ordered that two items of properties should be sold first and if any balance remained due after the sale of those properties, then the same should be realised by the sale of the remaining properties. The plaintiff who was a purchaser of one of the items paid off the mortgage decree and sued the assignees of the remaining properties for contribution. The Calcutta High Court held that since there was an agreement between the parties to the effect that the two items of properties should he sold first and if any balance remained after such sale then only the other properties should be sold, such an agreement would amount to a contract to the contrary as contemplated under Section 82, T. P. Act, and, therefore, the plaintiff was not entitled to any contribution. This decision was the subject of comment by Madhavan Nair J. in -- 'Raghavachari v. Venkatanarayana Reddi', AIR 1935 Mad 456 .(B). What happened in that case was that in the process of execution of a mortgage decree it was ordered that certain properties should be sold first and then only the other properties. In a suit for contribution, the learned fudge held that a decision settling the order in which the properties are to be sold under a mortgage decree is not a bar to the subsequent claim for contribution as between the persons interested in those properties. At p. 458, the learned Judge distinguishes the decision in 6" Cal WN 583 (A), in the following words :