LACHHMINARAYAN Vs. JANMAIJAI MAHTON

JUDGEMENT

(1.) The question at issue in this appeal is whether the judgment-debtor 11, who is appellant, can invoke the principle of marshalling and ask that properties 1, 2 and 5 which he had purchased in a court sale in execution of a money decree should be sold by the decree-holder in the last instance.

(2.) It appears that the mortgage decree was passed with respect to 9 items of properties. On 23-8-1952 the appellant prayed for an order from the Court that properties other than those purchased by him should be sold in execution of the decree. The application was summarily rejected. But on 27-8-1952 he made a second application asking for the same relief. The learned Subordinate Judge after hearing the parties held that Section 56, T. P. Act, had no application to a purchase at an auction sale.

(3.) On behalf of the appellant Mr. P.R. Das has challenged the correctness of this order. It was argued by the learned counsel that though Section 56, T. P. Act, does not in terms apply to the present case the principle of the section can be properly invoked by the appellant. It was argued by the learned counsel that Section 56 does not purport to codify the law in India on this point nor can it be held to be exhaustive of the equitable relief that could be granted by the Court in a case where there is a purchaser of the mortgaged property in a court sale. Section 56, T. P. Act, is as follows :