CHINNIAH ROWTHER Vs. ABMUTHURAMAN CHETTIAR

JUDGEMENT

(1.) This civil miscellaneous second appeal arises out of an application by the assignee of a mortgage-decree to execute the entire decree against only one of the two items of the mortgaged property. The facts are briefly these. The suit property was subject to a mortgage dated 21 August 1908. The mortgagee holding this mortgage instituted a suit for sale of the property, defendants 1 and 2 are the mortgagors, defendant 3 held a second mortgage defendant 4 held a third mortgage Mid defendant 5 a fourth mortgage over the property. The present appellant is defendant 4. He purchased item 1 of the mortgage property in execution of the decree in O.S. No. 825 of 1926 by the third mortgagee in the present suit. After purchasing this item he has now obtained an assignment of the entire decree from the decree- holder in the present suit O.S. No. 1305 of 1926, and he seeks to execute the decree against item 2, not wanting to proceed against item 1, which he had already purchased in execution of the decree in O.S. No. 805 of 1926. Objection to the execution of the decree is taken by defendant 5, the fourth mortgagee, and he is really the contesting respondent in the second appeal.

(2.) The District Munsif recognised the assignment and dismissed, the objections of defendant 5 on the ground that he could not urge them inasmuch as he is not a co mortgagor but is only a subsequent mortgages. His objection was that by the purchase of the equity of redemption with regard to item 1 by the present petitioner, the mortgagor and. the mortgagee has become one and the same person by fusion of interests, that the mortgage has been discharged protanto and that therefore he could proceed only against the other item. In appeal against an order of the District Munsif the Subordinate Judge reversed the order of the lower Court and directed it to find out the respective values of the two items stating that the assignment will be recognised to the extent that the value of item 2 is proportionate to the value of both the items. The present appeal is against this order. Mr. Mohanarangam Pillai on behalf of the appellant urges two contentions : (1) that, as was held by the District Munsif the objection of the respondent, however valid it may be, could not be availed of by a puisne mortgagee, his right being only to redeem; and (2) that the objection cannot be taken in the course of the execution of the decree. Both these objections are amply met in the decision in Sarju Kumar Mukerji V/s. Thahur Prasad A.I.R. 1920 All. 129. It is not necessary to state the facts of that case, but it will be sufficient to say that in that case objection was taken, no doubt by the mortgagor, but it was taken in the course of the execution of the decree as in the present case.

(3.) The learned Judge held that by fusion of the interests of the mortgagor and the mortgagee, the mortgage-decree had become discharged pro tanto and the assignee decree- holder could proceed against the property which he has not purchased after first finding out the proportionate value of that property as against the mortgage debt. This question whether a puisne mortgagee could raise the objection was not specifically raised or dealt with in the judgment but it is assumed that anybody who is interested in the property can take the objection. On principle I do not see any reason why a puisne mortgagee could not take the objection because he is interested in preserving as much property as possible to safeguard his own interest as a mortgagee. Surely on principle I do not see any reason why the objection cannot be availed of by a puisne mortgagee. Another objection raised by the appellant is that this particular case will not fall within the decision in Sarju Kumar V/s. Thakur Prasad A.I.R. 1920 All. 129 having regard to the fact that the decree which has been assigned in favour of the appellant specifically states that item 2 shall be sold first, and then only item 1 should be sold, No doubt if that decree was being executed without any change in the circumstances, the argument would be good. But the purchase of one of the items by the appellant and the subsequent assignment of the decree to himself have introduced a change in the situation and on that account, I do not think effect can be given to the decree as it originally stood. The order of the lower Court is right and the civil miscellaneous second appeal is dismissed with costs.