R RAJAGOPALACHARIAR, OFFICIAL RECEIVER Vs. AKRISHNA MUDALIAR

JUDGEMENT

(1.) This appeal relates to the execution of a mortgage decree now held by the Official Receiver of Tinnevelly, who is the appellant before us. The decree provides that certain items of property in the possession of the third and fourth defendants, who were parties to the mortgage, should be sold first and that then if there was a further sum to be realised the items in the possession of the fifth and sixth defendants, who were purchasers of the equity of redemption of those items, should be brought to sale. There were several execution petitions but we need only refer in the first place to E.P. No. 18 of 1923 where an order for sale in accordance with the decree of the third and fourth defendants properties was made. This sale was stayed under an order passed by Wallace, J., in C.M.P. No. 3947 of 1923 which runs as follows: Properties in the hands of defendants five and six will be sold first. If they do not realise the full decree amount, properties in the hands of appellants (defendants three and four) will be sold, on the same day.

(2.) When the Civil Miscellaneous Appeal came before a Bench for disposal the order passed ran thus: By consent, there will be an order in terms of the compromise set out in the order on C.M.P. No. 3947.

(3.) It appears that the foundation for these orders was a compromise said to have been come to between the third and fourth defendants on the one side and the fifth and sixth defendants on the other in a separate proceeding in which the third and fourth defendants sued for a declaration that the mortgage was not binding upon them. We may take it that the effect of the compromise between these two pairs of defendants was that the fifth and sixth defendants agreed to have their properties sold first in execution of the mortgage. After the order passed by this Court the fifth and sixth defendants, who had not been parties to it at all, raised the objection in E.P. No. 27 of 1929 that the order could not bind them. That petition was dismissed, and we then come to the present petition filed by the decree-holder asking for the sale of the properties in accordance with the terms of the decree, namely that the third and fourth defendants properties should be sold before those of the fifth and sixth defendants. The learned Subordinate Judge has come to the conclusion that the consent order passed in the Civil Miscellaneous Appeal is binding upon the parties until it is set aside and for this and some other reasons he has dismissed the petition. The result is that the decree-holder, who does not appear to be very much concerned as to the order in which the properties should be sold, finds himself in the position of being unable to sell any of them at all.