P KATHISA BI Vs. VRVENKATESWARA IYER

JUDGEMENT

(1.) These two appeals, both arise out of the execution of a mortgage decree which was passed in May, 1938, for a sum of Rs. 77,186-7-1. The appellant in C.M.A. No. 659 of 1941 was the 322nd defendant, and he is interested in items 193 to 196 out of the 11 items which have been sold. The appellants in C.M.A. No. 284 of 1942 are defendants 275, 276 and 346. They are interested in two items only which have been sold. The contention of the appellant in C.M.A. No. 659 is that the properties covered by the mortgage should be so marshalled as to enable him to realise something towards the puisne mortgage which he holds over the four items in which he is interested. This contention was repelled mainly on two grounds, firstly because his right to marshalling had been negatived by the finding on the issue in the suit and secondly because the decision in Thanmul Sowcar V/s. Ramadoss Reddiar interprets Section 81 of the Transfer of Property Act as not allowing a puisne mortgagee to restrict in any way the prior mortgagee's right to have the properties sold as he thinks fit.

(2.) On the first question, the appellant relies on two decisions, Raghavachariar V/s. Krishna Reddi (1923) 46 M.L.J. 32 and Narasimha Rao V/s. Subbarayudu at 137 in support of his contention that a right to marshalling cannot be finally decided in the suit itself, and, even if it is so decided, it can be re-agitated in the proceedings in execution. We do not consider that it was the intention of the learned Judges who decided the cases quoted to lay down any such sweeping proposition. In the first case the Bench was clearly dealing with a case in which the trial Court had declined to go into the claim to marshalling because it was a claim which could more appropriately be decided in the course of execution. No doubt there was also an observation reflecting on the merits of the claim. But, as we read the decision, it does not hold that where the right to marshalling has properly formed the subject of an issue in the trial which issue has been decided, the ordinary rule of res judicata would be abrogated so as to enable the parties to re-agitate the matter at a later stage. The judgment in Narasimha Rao v. Subbarayudu at 137 does not state the facts in any detail but purports merely to follow the decision in Raghavachariar V/s. Krishna Reddi (1923) 46 M.L.J, 32. Presumably it was a similar case in which there had not really been any decision on the merits of the claim under Section 81 of the Transfer of Property Act in the course of the trial. We do not think that it can be said that where a claim to marshalling has been raised as an issue in the suit and a decision on the merits thereof has been given, the matter is open for fresh contest in the course of execution. No doubt there may be cases in which the Court of its own discretion during execution may think fit to order the properties to be sold in a certain way as a matter of convenience. That is not the same thing as allowing a party to claim the right to have the properties sold in a particular order as a matter of law.

(3.) Apart from the fact that the appellant's claim has been decided in the suit, we do not consider that the present case is a fitting one for raising the question the decision in Thanmul Sowcar V/s. Ramdoss Reddiar (1927) 55 M.L.J. 358 : I.L.R. 51 Mad. 648 requires reconsideration. thatever be the view taken as to the propriety of that decision, there are not on the facts of the present case grounds for allowing any right of marshalling in favour of the appellant. The properties mortgaged consist of over 200 items and almost all are subject to encumbrances or alienations, many of which are complicated by the existence of rights to compensation for improvements in the alienees. To try and work out the equities of all the encumbrancers and alienees in such circumstances by arranging the order of sale without prejudice to the decree-holder on the first mortgage, would clearly be to attempt the impossible. This seems to be eminently a case in which the puisne encumbrancers should be directed to work out their own rights by way of suits for contribution.