SARJU KUMAR MOKERJI Vs. THAKUR PRASAD

JUDGEMENT

(1.) This appeal arises out of an application for execution of a mortgage decree. It appears that on the 2nd of January, 1918, one Kanhya Lal obtained a final decree for sale of two villages, Pasi and Amilia, and one house, against Thakur Prasad, the present respondent. In execution of a simple money decree against the latter, half of Pasi and the whole of Amilia and the house were sold at auction and purchased in the name of Hem Chandra on the 20th of March, 1918. Subsequently on the 7th of April, 1918, Dr. Mukerji, the father of Hem Chandra, purchased the whole of the mortgage decree from Kanhya Lal. Dr. Mukerji having got his name substituted in place of the original decree-holder under an order, dated the 24th of August, 1918, proceeded to execute the decree and wanted to realize the whole of the decretal amount by sale of only half the share in village Pasi, which was still owned by Thakur Prasad. The judgment-debtor put in objections to the application for execution and pleaded that it was Dr. Mukerji himself who had purchased part of the mortgaged property at auction in the name of his son, Hem Chandra, who was a mere benamidar. He further pleaded that inasmuch as Dr. Mukerji who was himself interested in part of the mortgaged property, had acquired the mortgage decree, the decree had become incapable of execution. The court below found that Dr, Mukerji was the real purchaser of part of the mortgaged property and although it did not hold that the decree had in consequence become incapable of execution, it held that the mortgagee decree-holder must give credit for the proportionate part of the decretal amount which was a charge on the property purchased by himself. The decree-holder has appealed to this Court and the judgment-debtor hag filed cross-objections. In appeal the finding of the court below that Dr. Mukerji was the real auction-purchaser has not been challenged, but it has been strongly urged that a mortgagee is entitled to realize the whole of the mortgage debt from any part of the mortgaged property he likes and that the execution court is not competent to go behind the decree and consider the question of apportionment, which must be left to be determined in a subsequent contribution suit.

(2.) Now, it is a well established principle of law that when a mortgagee acquires a part of the mortgaged property, the integrity of his mortgage is broken and he can no longer compel the mortgagor to pay the whole of the mortgage money before redeeming his share of the mortgaged property. Such a principle is expressly embodied in Section 60 of the Transfer of Property Act. The same principle has been applied to a suit for sale brought by a mortgagee after having acquired part of the equity of redemption A Full Bench of the Allahabad High Court in Bisheshur Dial v. Ram Sarup (1900) I.L.R. 22 All. 284 held that where a mortgagee purchases a part of the mortgaged property such purchase has, in the absence of fraud, the effect of discharging and extinguishing that portion of the mortgage debt which was chargeable on the property purchased by him, that is to say, a portion of the debt which bears the same ratio to the whole amount of the debt as the value of the property purchased bears to the value of the property comprised in the mortgage. In this case, however, the mortgagee having purchased a moiety of the mortgaged property was seeking to bring to sale the other moiety of the mortgaged property for recovery of only a moiety of the amount due on the mortgage, and was not trying to realize the whole of the mortgage money. It was the mortgagor who raised the point that inasmuch as the difference between the real value of half the mortgaged property, if sold encumbered, and the price paid for it by the mortgagee was equal to the amount due upon the mortgage, the mortgage debt must be taken to have been extinguished. Banerji, J., in delivering the main judgment of the Court, pointed out that when the mortgagee bought a portion of the mortgaged property, the rights of the mortgagee and the mortgagor, as regards the portion purchased, became vested in the same person, and the result was that a part of the mortgage debt was wiped out by reason of this fusion of interests, and the balance only was recoverable from the remainder of the mortgaged property. The Court thereupon held that only so much of the debt could be held to be discharged as was proportionate to the value of the property in respect of which the confluence of rights had taken place.

(3.) The question that remains to be considered is whether there is any difference in principle in the case where it is after the decree for sale, and not before it, that the mortgagee acquires apart of the mortgaged property, or what comes practically to the same thing, where a co-mortgagor acquires the mortgagee s rights. The contention for the appellant is that the effect of the passing of the decree is to put it beyond the competence of the court to consider whether there should be any proportionate reduction in the amount sought to be recovered. It is true that an execution court cannot go behind the decree and must execute it as it finds it, and it is also true that ordinarily it is open to the mortgagee to recover the whole of his mortgage money from any part of the mortgaged property he likes and that the mortgagor cannot insist that the mortgaged properties should be sold in any particular order. But if the vesting of part of the equity of redemption in the mortgagee is tantamount to a discharge or satisfaction of a proportionate part of the mortgage debt, there is no reason why an execution court should not recognize it and go into the question of the extent to which the decree has been satisfied. Section 47 of the Code of Civil Procedure would seem to be comprehensive enough to cover the case.