AYMAMUD SARCAR Vs. EBARUDDIN SARCAR

JUDGEMENT

(1.) The question raised in this appeal is whether respondent 1 can execute a mortgage decree for the full amount mentioned in the said decree, against all or any of the mortgage properties, or is he entitled to levy execution only for a proportionate amount and confine his execution to properties Nos. 2 to 4 of the mortgage decree.

(2.) The question is one on which the High Courts of India have taken divergent views.

(3.) Respondent 2, Hiralal Shaha, advanced money to the predecessor-in-interest of respondents 3 to 9 on the security of some properties, which may be called properties Nos. 1 to 4. He obtained a mortgage decree in the year 1928 on this mortgage, which decree has been assigned to respondent 1 who has applied to execute the same, limiting his execution in the first instance to property No. 1 in pursuance of the order of the Court made on 18th January 1929 at an earlier execution. Hiralal had taken another mortgage from the same person for another loan, but that mortgage included only property No. 1. This mortgage was assigned to respondent 1 who sued upon it, obtained a decree and in execution thereof purchased the mortgaged property himself in the year 1930, that is at a date subsequent to 18 January 1929.