SRIMATH THIRUMALA VENKATA SRINIVASACHARYULU AYYAVARLAM GARU AND ANR. Vs. SRIMATH KIDAMBI SRINIVASA VENKATAVARADACHARYULU (TRANSFEREE DECREE-HOLDER)

JUDGEMENT

(1.) THE execution petition out of which this appeal arises was in execution of a final mortgage decree of 16th June, 1942, in O.S. No. 15 of 1939. One of the items mortgaged, namely, item 4, was purchased by the second defendant in execution of a money -decree against the mortgagor; and on the 27th December, 1942, the respondent acquired the rights of the second defendant in this property. On the 19th March, 1943, by Ex. P -1, the respondent obtained an assignment of the mortgage decree in O.S. No. 15 of 1939. He now seeks to execute O.S. No. 15 of 1939; and some of the defendants opposed the execution of the decree on the ground that since the respondent had acquired the rights of the mortgagor| in a part of the property and had become a transferee decree -holder, he was not entitled to execute the decree at all; and even if he were, he would be entitled to execute it only for the decree amount minus the proportionate burden of the decree resting upon item 4. The learned Subordinate Judge overruled the objection and ordered the decree to be executed for the full decree amount. He held that the equities in favour of the appellants could be considered only in a suit by them for contribution. In appeal, the appellants have not argued the extreme case which they adopted in the lower Court for contending that the decree could not be executed at all. They content themselves here with arguing that the decree can be executed only for the proportionate share of the decree amount.

(2.) THE question whether the objections of the appellants are tenable or not depends upon whether, in the words of Section 47 of the Civil Procedure Code, these matters relate to the "execution, discharge or satisfaction of the decree." If they do, then the Court is bound to consider the questions raised by the appellants, if not, then the Court is precluded from going into those questions; and the parties must have their equities adjusted in a separate suit. It is argued that the question raised relates to the discharge of the decree; it is said that upon the respondent's acquiring an interest in item 4 of the property and then obtaining an assignment of the decree, there was a pro tanto and automatic discharge of the decree. Even if there had been no decree and we were considering a claim by a mortgagee who had acquired the interests of a mortgagor, it would be difficult to see how there could have been an automatic discharge of the mortgage amount, A mortgagor could resist a claim by the mortgagee for the full amount only by applying Section 60 of the Transfer of Property Act, which enunciates the principle that the mortgagor cannot redeem the mortgage only in part, according to his share, except in cases where the mortgagee has acquired the interests of a mortgagor. The last paragraph of Section 60 says:

(3.) IT is thus seen that the reason why a mortgagee who acquires the interest of a mortgagor cannot be given a decree for the full amount is that he has himself become owner of a part of the mortgaged property and so his share of the mortgage burden can be set -off even in the mortgage suit against the claim on the mortgage. There is in such a case no fiction of a pro tanto discharge of the mortgage amount, except in a very loose sense of that expression.