BRAJKISHORE RAI Vs. RAMRAJ RAI

JUDGEMENT

(1.) THIS appeal by tile judgment debtor No. 3 is directed against the judgment and order of the District Judge, Sahabad, reversing those of Munsif 1st Court, Buxar. One Kesho Rai executed a mortgage in favour of Ramraj Rai respondent No. 1, mortgaging three khatas having an area of 12.93 acres. Subsequently, he sold 9.30 acres to the appellant and 2.27 acres to the judgment debtor No. 2. The remaining 1.36 acres remained in possession of the mortgagor who is judgment debtor No. 1. It may be noted that the judgment debtor No. 2 is a nephew of the mortgagee, respondent No. 1. The decree on mortgage was passed against the mortgagor and the two subsequent purchasers and it was put in execution. The amount of decree calculated till the time of execution came to about Rs 2,700/-. The total valuation of the mortgaged properties as determined under Section 13, Money Lenders' Act came to Rs. 5,000/-. The decree-holder, therefore, wanted to proceed only against the land covered by the purchase of the appellant. He filed an application for the apportionment of the decretal debt. The learned Munsif held that the judgment-debtors Nos. 2 & 3 were entitled to rateable distribution of the liability to pay off the decretal dues in proportion to the extent of their respective purchases. Against that order, the decree-holder preferred an appeal and the lower appellate court reversed the order holding that the decretal debt could not be apportioned in the execution proceeding. In the present appeal, Mr. D. N. Verma on behalf of the appellant has contended that the decree-holder was not entitled to proceed only against the property covered by the sale deed of the appellant and to exonerate the properties covered by the purchase of the judgment-debtor No. 2 as well as those which were in possession of the mortgagor himself. His contention is that the order of the learned Munsif apportioning the decretal debt was quite justified and the executing court had jurisdiction to work out the equity between the parties. In support of his contention he has relied on the case of -- 'Qaiser Beg v. Sheo Shankar Das', AIR 1932 All 85 (A). THIS case, however, instead of supporting his contention, in my opinion, supports the view of the other side. In the course of his judgment, Sulaiman J. observed as follows :

(2.) IN the result, the appeal is allowed in part. The orders of the courts below are set aside and it is directed that the decree-holder will first proceed against the properties in possession of the mortgagor and, if the decretal debt is not satisfied out of the sale of that property, then he will choose out of the remaining properties against which he likes to proceed. IN the circumstances of the case, there will be no order for costs in this Court.