KUPPUSWAMI GOUNDAR Vs. K MUTHUSWAMI GOUNDAN

JUDGEMENT

(1.) This, appeal raises an interesting, point of equity arising in execution. Appellant is the fifth judgment-debtor in a mortgage decree in O. S. No. 172 of 1935 involving .10 items of hypotheca comprising a total extent of about 32 acres. The date of the mortgage was 15-7-1922. The preliminary decree was passed on 19-8-1936 and the final decree in 1937. The appellant is only concerned with S. No. 430. six acres 20 cents of dry land, which was purchased by bis grand-father on 4-12-1926 by a sale-deed, Ex. II, from the original mortgagor. He appeals against the dismissal of E. A. No. 37 of 1951, which he filed in execution for a direction that this item of property be sold last in E. P. No. 579 of 1949 in the following circumstances.

(2.) On 24-11-1926 the mortgagor sold four items to the seventh respondent and on 17-6-1935 some other items to the eighth respondent. All these alienees were impleaded in the mortgage suit, O. S. No. 172 of 1935. The decree was later assigned to Athappa Goundan, the second respondent and was scaled down to Rs. 5000/-. The assignee decree-holder filed E. P. No. 579 of 1949 for the sale of six items out of ten and sought to bring to sale only S. No. 430 first, although it is in the mortgage the penultimate item hypothecated. In the suit itself, the fifth defendant claimed priority on the ground that with the money lent under Ex. II, his grandfather discharged a previous mortgage of 1913. There was a finding in the suit that the fifth defendant was not entitled to priority as the discharge evidenced by Ex. II was at best a case of partial discharge. In E. P. No. 278 of 1945 in which S. No. 430 was sought to be brought to sale first, the appellant took the same objection, which the Subordinate Judge overruled in the following brief order: "No question of order of priority for sale arises in this case since the petitioned wants to bring to sale only one item. Objection overruled." Then in E. P. No. 579 of 1949 pressed by the assignee decree-holder in which he persisted to seeking to bring to sale S. No. 430 first, the appellant filed E. A. No. 37 of 1951, which set out in detail circumstances under which he prayed that the sale should proceed in an inverse order and that S. No. 430 should be sold last. The Subordinate Judge disposed of it in a very unsatisfactory and brief order to the effect that the same objection was once before urged and overruled in E. P. No. 278 of 1945. The learned Judge did not go into the merits of the application at all and appears to have failed to appreciate them.

(3.) One of the allegations in the petition was that the execution petition was not 'bona fide' as the assignee decree-holder, who is a resident of the locality and a close relation of the parties, had taken the assignment with full notice of the equities attaching to the rival claims pf the appellant and the other alienees. It was also alleged that the assignee decree-holder was a leading and influential person, who was on inimical terms with the present appellant.