PERIYASAMI KONE Vs. VPRMMUTHIA CHETTIAR

JUDGEMENT

(1.) The view of the Lower Courts that a decree holder is entitled to abandon hie claim against some of the mortgaged properties even after decree so as to enable him to ignore the terms of the decree if those terms direct him to bring those properties to sale before he could proceed against other properties of the judgment-debtor, that view, though in accordance with certain Allahabad decisions, cannot be accepted as sound as it is against the decision of this Court in Manti Kamoji v. Ghodimalla Ramamurthy (1908) 3 M.L.T., 335, which has been recently followed by this Bench in Vardiah v. Raja Perumal Raja Bahadur Appeal against Order No. 257 of 1909.

(2.) If, of course, the mortgaged properties directed to be sold under the mortgage decree do not belong to the mortgagor, the mortgagee need not be compelled to resort to the farce of bringing them to sale and to undergo the useless delay involved in bringing them to sale, because it is an elementary principle of law that the Court will not do a vain thing, nor will it compel a man to do a fruitless thing.

(3.) Check Lex nil frustra facit. Lex neminem cogit ad vana seu inutilia. See also Kriahnamachariar v. Bagiammal (1913) 22 M.L.J., 125.