NARAYANASAMI CHETTY Vs. VELLAYA PILLAI

JUDGEMENT

(1.) The District Munsif's action in dismissing the mortgagee-decree-holder's execution petition because he sought to bring only the second item to sale cannot be supported. A decree-holder is entitled to execute his decree against any of the mortgaged properties vide Amir Chand V/s. Bukshi Sheo Pershad Singh (1907) I.L.R. 84 Calc. 13.

(2.) Admittedly the respondent has no right to have the properties marshalled under Section 81 of the Transfer of Property Act; nor has he as against the mortgagee the right that Section 56 of the Act gives to a buyer against a seller when more properties than one are subject to a common charge. In Tara Prasanna Bose V/s. Nilmoni Kahn (1914) I.L.R. 41 Calc. 418 which was a case falling under that section, the mortgagee had foreclosed and was therefore treated as representing the seller.

(3.) Nor is it alleged that the present is any case of fraud on the part of the mortgagee. The respondent as second defendant was a party to the suit and he did not at the time of the trial ask the Court to direct in the decree that the properties should be sold in any particular order.