SAMBANDAM PILLAI Vs. RAMASWAMI NAIDU

JUDGEMENT

(1.) THIS appeal arises out of execution proceedings in O S No. 31 of 1945. on the file of the Sub Court, Cuddalore The 6th defendant in the suit is the first appellant herein He and his son filed an application, E A No 700 of 1960 out of which this appeal arises, for directing the decree-holder in O. S. No 31 of 1945, to sell items 1 to 15 and 17 to 25 of the decree first in execution and to sell item 16 afterwards when this application came up before the learned Subordinate fudge Cuddalore, he allowed the application, subject to the condition, namely, that item 16 would be sold in the order in which it was found in the decree seriatim The assignee decree holder filed an appeal against the said direction to the District Judge. Cuddalore. He held that the assignee decree-holder had a right to proceed only against item 16 which belonged to Sambandam Pillai, the 6th defendant, the original mortgagor, and thus set aside the order of the learned Subordinate Fudge The assignee decree-holder was thus permitted to proceed in execution only against item 16 It is against this order the 6th defendant has preferred this appeal

(2.) IT is necessary to state briefly the facts which led to the filing of the petition by the appellants herein in the executing Court. A security bond was executed for Rs 9,000/ by one Venugopal Naidu, the 2nd defendant in the suit in favour of the district Munsif Vridhachalam, for the benefit of one Seshayya Naidu The security bond comprised of 25 items of property belonging to Venugopal Naidu While the security bond was in force Venugopala Naidu and his sons defendants 3 to 5, sold item 16 of the property to the 6th defendant-appellant for Rs 3,000/ Similarly, defendants 2 to 5 executed another sale-deed in respect of items 20, 24 and 25 in favour of the 9th and 10th defendants, who are the legal representatives of the 7th defendant Subsequently, in the year 1945, Seshayya Naidu filed the suit O. S. 31 of 1945, on the file of the Sub Court Cuddalore. on the security bond executed by Venugopala Naidu in favour of the District Munsif Virdhachalam. and all the purchasers were impleaded as parties. A preliminary decree was passed on 81-11947 for Rs. 9570-4-0. The decree was against defendants 2 to 6 and 8 to 10, and the charge was spread over all the items of property. Subsequently, the decree-holder, Seshayya Naidu, assigned the decree to one Ramaswami Naidu. the present first respondent herein. A final decree was passed on 18-7-1985. The said Ramaswami Naidu, after obtaining the assignment of the decree, released items 20, 24 and 25 in favour of the 9th and 10th defendants on 10th March, 1958 by a registered lease deed, Ex. B-l, in consideration of Rs. 100/ -. On 16th July, 1958, the assignee decree-holder filed Ex P. No. 398 of 1958 praying for a sale of all the 25 items without mentioning the release of items 20, 24 and 25 under Ex. B-l, already referred to. When the Court returned the petition on 13-8-1958, with a direction that he should file the sale papers, the assignee-decree-holder filed the sale papers on 258-1958, only in respect of item 16 with a note that, as the encumbrance certificates in respect of items 1 to 15 and 17 to 25 have not yet been obtained, he would bring those items to sale subsequently. Before the said E. P. came for hearing, the assignee decree-holder released items 1 to 11, 14, 15, 17 to 19 and 21 to 23 in favour of the second defendant, Venugopala Naidu the person who executed the security bond, for a sum of Rs. 500/- an extent of 23-66 acres of punja land and 4-70 acres nanja land. The first appellant herein objected to the procedure adopted by the assignee-decree-holder. The execution application was, therefore, withdrawn. Again, on 29-2-1960, the assignee decree-holder filed another E P (E. P. No. 152 of 1960) for the sale of item 16 the appellant herein filed E. A. No. 700 of 1900, alleging that he is the bona fide purchaser of item 16 from defendants 2 to 5 for a valid consideration of Rs 3,000/that the first respondent took an assignment of the decree for a low consideration and is maliciously bringing to sale only item 16, and that the other respondents got the secured property on release from the assignee decree-holder for a low consideration. He, therefore, prayed the Court that his property, item 16, should be ordered to be sold last, after items 1 to 15 and 17 to 25. The assignee-decreeholder resisted the application supported by the second defendant, Venugopala naidu, who obtained release of the major items of properly The assignee-decreeholder asserted that, as a mortgagee-assignee decree-holder, he was entitled to release some items and to proceed against any item of the mortgage as he pleased and submitted that this matter could not be gone into in execution proceedings. The learned Subordinate Judge was convinced that the assignee decree-holder was actuated by mala fides in singling out item 16 and in bringing that property to sale, and allowed the application filed by the 6th defendant and ordered that the properties should be sold in the order in which they were found in the decree The learned District Judge, on appeal by the assignee-decree-holder, observed that the Court should frustrate any attempt on the part of the decree-holders to throw most of the burden mala fide on only one of the mortgaged properties. However, he came to the conclusion that this mortgagee would have a paramount right to have the entire mortgage amount recovered from all or any of the properties comprised tat the mortgage and that this right could be whittled down only by clear and express words in the enactment or by necessary intendment, and that the provisions of Section 56 of the Transfer of Property Act and Order xxxiv Rules 4 and 5 Civil Procedure Code neither expressly nor by necessary intendment curtail the powers of the mortgagee to release his rights in respect of some properties of the mortgage by virtue of the dominant right to realise the entire decree debt only from some of the properties comprised in the mortgage the sixth defendant has come in appeal.

(3.) NOW, I have to consider how tar this observation made by the District Judge is correct and in accordance with law. A Bench of this Court has held as early as 1906 in Krishna Aiyar v. Muthukumarasamia Pillai, ILR 29 Mad 217,