K C MATHURI Vs. MURALEEDHARAN

JUDGEMENT

(1.) THE petitioners have filed the above revision aggrieved against the order passed by the executing court in E.P.No.121 of 1985 in O.S.No.123 of 1967, dated 28.11.1990, rejecting the execution petition.

(2.) THE property in question belonged to the plaintiffs tarward. On 28.6.1904 the plaintiff tarward executed a mortgage deed in favour of one Nallathambi. THE mortgage and "purakadam" rights devolved on the defendants and they are in possession of the said property as mortgagees. So, the plaintiffs filed a suit in O.S.No.122 of 1967 on the file of the learned Additional District Munsif Court, Nagercoil to redeem the mortgage. THE learned District Munsif had decreed the suit holding that the plaintiffs are entitled to redeem item Nos.1 to 3. Aggrieved against the same, the defendants 1, 2 and 5 filed appeal in A.S.No.172 of 1970 on the file of the Sub-Court, Nagercoil. THE lower appellate court dismissed the appeal and confirmed the judgment and decree of the trial court dated 14.11.1967. THEreafter, I.A.No.864 of 1971 was filed by the plaintiffs for passing final decree for redemption of the property. THE defendants filed a counter objecting the same. On 29.6.1974 the trial court directed the plaintiffs to deposit a sum of Rs. 13,052 for which the defendants are entitled, and passed the final decree accordingly. After obtaining the final decree, the second plaintiff took execution proceedings by filing E.P.No.121 of 1985. THE other plaintiffs did not object the same. THE defendants filed objections. Meanwhile, the fourth plaintiff sold his 2/5 share in the property in favour of the second defendant's wife on 27.12.1974. THE first plaintiff sold his 1/5 share in favour of the 5th defendant under the sale deed dated 9.1.1975. On 4.2.1984, the third plaintiff deposited the value of improvements in court.

(3.) IN the present case some of the decree holders" right and the defendants" obligation got united as one. So, the question is whether there has been such a merger in the case as to render the entire decree in executable. Sec.60 of the Transfer of Property Act provides that "noting in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor" IN the present case there are more than one mortgagees. But, one of them has acquired the share of the mortgagor. IN view of the above, the indivisible character of the mortgage was broken and the mortgagor could not claim redemption of the share of other co-sharers in which he was not interested.