SYED MAHOMED SIDDIK Vs. RAM LAL MANDAR

JUDGEMENT

(1.) The facts on which this second appeal depends stand thus. One Saudagar Mian mortgaged the properties A and B to the plaintiff decree-holder by a single deed of mortgage as security for money advanced to him. Sometime after the mortgage, the mortgagor sold the property A to the respondent Ram Lal Mandal. In the suit on the mortgage, the decree-holder made both Saudagar Mian and Ram Lal Mandal defendants, and a mortgage-decree was passed against both of them, or rather was passed against the mortgaged property in the hands of both of them. The decree-holder applied for execution in the usual way in execution case No. 667 of 1938 by sale of the mortgage properties, that is, both the parcels A and B. The Munsif, in the exercise of his discretion, a discretion which we remark is vested in law with the Court alone, directed that the property B should be sold first. This did not at all suit the decree-holder, who in conjunction, we do not say collusion, for of that there is no evidence, with the mortgagor Saudagar filed a petition to the Munsif to dismiss the execution proceedings. The Munsif accordingly dismissed the petition and a week afterwards the decree-holder applied for execution by sale of the property A alone.

(2.) Now we are asked, on the authority of the case of Amir Chand V/s. Bukshi Sheo Pershad Singh 34 C. 13 : 4 C.L.J. 573, to hold that the decree-holder being entitled to execute his decree against any of the mortgaged properties he pleases, the Courts below cannot go behind this petition to sell property A. We cannot hold that the dictum at page 17 of the case above cited applies to any case or to the facts of any case other than the case itself in which the ruling was given. The dictum does not appear anywhere else as far as we know and it would result in this that the inherent power of the Court conferred by law to decide in what order the mortgage properties are to be sold would be altogether abrogated at the option of the decree-holder. This cannot be the intention of the law and it is perfectly clear that the learned Judges, who decided the case of Amir Chand V/s. Bukshi Sheo Pershad Singh 34 C. 13 : 4 C.L.J. 573, intended the dictum to apply to the sentence immediately preceding, the plea before them being that the decree-holders could not execute their decree without bringing the two properties purchased by their predecessor into hotchpot. They did, as a matter of fact, proceed against all the four properties which had not been previously sold, and it was held as a well-known principle of law that in execution, the decree-holder could not be compelled to bring into the hotchpot properties which had already been sold in execution of a decree, and if any equities arose between himself and third parties, those would have to be decided in a separate suit. But in this suit we have no outside parties and no equities to be decided. The case is simply one for execution. The decree-holder applied for execution in the ordinary way and it is for him to explain why he got that very proper petition dismissed and within one week brought an imperfect and partial petition for execution which had the effect of fettering the hands of the Court in its undoubted power to direct in what order the property should be sold. It appears to us that the only order which should be passed in this case is that the present petition be dismissed unless it be amended within the time allowed by law by adding the other property B to the application for execution so as to leave it in the discretion of the Court to order the properties to be sold in any order it may see fit. We do not desire to suggest to the Court the order in which the properties should be sold. The order of the lower appellate Court directing that property B should be sold first on the present application appears to be ultra vires but when both properties are brought into execution and become subject to sale, it would be then for the Court to decide on just and equitable principles which property ought to be first sold.

(3.) The appeal is, therefore, dismissed with this modification that no order for sale of property B can be made until the decree-holder has carried out the directions in this judgment either by amending his petition or by filing a fresh one.