KUPPUSAMI IYENGAR Vs. SUBBARAYA ROWTHA MINDA NAINAR

JUDGEMENT

(1.) I think the order of the Subordinate Judge is wrong in so far as it disallows the petition of the appellants who are decree-holders in Original Suit No. 62 of 1901 to proceed against the properties not mentioned in the sale-certificate dated the 16th December 1904 but included in the decree obtained by the Nadars, the judgment-debtors of the appellant, against the respondents. I have assumed that the properties now sought to be proceeded against are not covered by the sale-certificate in question because there is no evidence on record to show that they are, but the decrees obtained by the appellants against the Nadars entitle them to recover the judgment-debt from their persons and other properties. The properties in dispute are undisputedly included in the mortgage-decrees of the Nadars and so all their rights in those properties are liable to be sold if the decree obtained by the appellants is not satisfied by the sale of the Nadar s interest in the properties hypothecated to them and ordered to be sold under the appellant s decree. Order XXT, Rule 53 of the Code of Civil Procedure which governs this case lays down that the holder of a decree sought to be executed by the attachment of another decree for sale in enforcement of a mortgage or charge shall be deemed to be the representative of the holder of the attached decree and, therefore, to be entitled to execute such attached decree in any manner lawful for the holder thereof. It was the same Subordinate Court of Kumbaconam that passed the decree obtained by the Nadars against the respondents and the decree obtained by the appellants against the Nadars. Then, all that would be necessary for the attachment of the Nadars decrees, so fat as the properties in question are concerned, is to pass an order to that effect and then the appellant can proceed to execute the mortgage decrees of the Nadars. The appeal is, therefore, allowed with costs here and in the Court below and the Subordinate Court will be asked to dispose of the appellant s application for execution according to law.

(2.) Appeal Against Order Nos. 121 and 122 of 1910.

(3.) These appeals follow Appeal No. 120of 1910.