PEDAPATI MANGAYYA Vs. GARAPATI ACHAYAMMA

JUDGEMENT

(1.) On 27th March 1934 the appellant mortgaged a number of items of property to the transferor of respondent 1 for Rs. 3000. On 18th September 1940 he executed three sale deeds in respect of certain items of the mortgaged property in favour of respondents 2 to 4, clearly intending that by these sales the whole mortgage debt should be paid off and the vendees left to enjoy the property free of mortgage, Unfortunately, respondents 2 to 4 did not pay the money, although it is alleged that some years later the money was deposited in Court. On an application under the Agriculturists' Relief Act, the debt was scaled down in O. P. No. 406 of 1943 to Rs. 3100-14-6. The mortgagee thereupon sought to bring the hypotheca to sale for the mortgage debt; but the appellant in E. A. No. 217 of 1946, asked that the Court in equity should sell first the items of the hypotheca that had been sold to respondents 2 to 4. The learned Subordinate Judge, in a very brief order, dismissed the application, saying that the respondents had a statutory right under Section 56, T. P. Act to have the items sold to them, sold last.

(2.) Respondents 2 to 8 were ex parte when the order of the lower Court was made; but in appeal to this Court they sought to adduce additional evidence which they might have put forward in the lower Court, but did not. Clearly, they cannot be allowed to do that. It has been contended on their behalf that they were not served in E. A. No. 217 of 1946. We have perused carefully the BDiary, and it would seem that although it is true that they were not personally served, yet they did instruct the counsel who appeared for them in the earlier proceedings to appear for them in E. A. No. 217 of 1946 also. When E. A. no. 217 of 1946 was called, they and their pleader were, however, absent ; and so the matter was heard ex parte.

(3.) It is first argued that the words "contract to the contrary" in Section 56 refer only to contracts between the mortgagor and the mortgagee. The learned Advocate in support of this argument has referred to Ramabhadrachar v. Srinivasa Aiyangar, 24 Mad. 85, Charan Singh v. Ganeshilal, A. I. R. (13) 1926 ALL. 352 : (94 I. C. 1048) and other cases which held that the words "contract to the contrary" in Section 82, T. P. Act, related to contracts only between the mortgagor and the mortgagee. It was held in Ramabhadrachar v. Srinivasa Aiyanagar, 24 Mad. 85, which was cited with approval in Charansingh v. Ganeshilal, A. I. R. (13) 1926 ALL. 352 : (94 I. C. 1048), that the law enunciated in Section 82, T. P. Act, was the same as the law in England; but it was nevertheless pointed out in that decision that if there was a contract between the mortgagors, that contract could be enforced, although it was not a contract contemplated in Section 82. Since, however, a contract between comortgagors is not an agreement that runs with the land, it would not bind assignees from the mortgagors. Assuming these decisions to have been rightly decided, we see no reason for thinking that the contracts contemplated in Section 82 are precisely those contemplated in Section 56. Many cases have been cited to us in which the question arose whether certain contracts between mortgagors and purchasers from them or other mortgagors were "contracts to the contrary" within the meaning of Section 56. We need cite only Pirthiraj Singh v. Rukmin Kunwar, 95 I. C. 343 at p. 345 : (A. I. R. (13) 1926 ALL. 415) and Muhammad Abbas v. Muhammad Hamid, 9 A. L. J. 499 : (14 I. C. 179) as examples. Even if the "contract to the contrary" referred to in Section 56 were a contract between the mortgagor and the mortgagee, Ramabhadrachar v. Srinivasa Iyengar, 24 Mad. 85, would be an authority for the position that that contract could be enforced.