NABIN CHANDRA BHATTACHARJYA CHOWDHURI Vs. DEBENDRA SEN

JUDGEMENT

(1.) This appeal arises out of an order passed by the District Judge of Mymensingh on the 21st of December, 1925, reversing an order which has been passed by the Subordinate Judge of that District on 21 October, 1925. The appellant before us held a decree for money, dated the 10 September, 1923, against a certain judgment-debtor. That judgment-debtor had prior to the date of the said decree mortgaged certain properties in favour of the decree- holder respondent in this appeal. The mortgagee instituted a suit on his mortgage on the 22nd December, 1924, and obtained a decree nisi on the 15 April, 1925. A final decree was subsequently passed on the 16 May, 1925. Between these dates, that is to say, on the 20th April. 1925, the appellant in execution of his own decree for money purchased some of the mortgaged properties, that is to say, lots Nos. 1, 2 and 5 and some dags of lot No. 8. The mortgagee after obtaining the final decree and in execution thereof advertised all the mortgaged properties for sale. An application was thereafter made on behalf of the appellant praying that the mortgaged properties with the exception of those which he had purchased in execution of his money-decree should be sold first and if the proceeds of that sale were not sufficient for discharging the decretal debt due to the mortgagee then the properties which he had purchased might be put up to sale. The learned Subordinate Judge on the 21 October, 1925, passed an order to the effect that lots excepting Nos. 1, 2 and 5 should be sold first and if that sale was not sufficient for satisfying the mortgagee's decree then lots Nos. 1, 2 and 5 should also be sold. Against this order the mortgagee-decree-holder preferred an appeal to the District Judge and the learned District Judge being of opinion that the mortgagee-decree- holder had an absolute right to determine the order in which the properties should be sold and relying upon the authority of the decision of a case reported in Khurodhar Singh V/s. Gajadhar Lal Mahto 31 Ind. Cas. 221 : (1925) Pat. 164 : 6 P.L.T. 393; A.I.R. 1925 Pat. 484 to which reference will be made hereafter allowed the appeal, set aside the order of the Subordinate Judge dated the 21 October, 1925, and directed that the properties would be put up to sale in the order chosen by the mortgagee-decree-holder. Against this order the present appeal has been preferred to this Court.

(2.) Two extreme positions have been taken up by the two parties before us in this appeal. Oh behalf of the appellant it has been contended that the Court has an absolute discretion in determining the order in which the properties have to be sold and inasmuch as the learned Subordinate Judge in the exercise of that discretion passed an order to the effect that the properties other than lots Nos. 1, 2 and 5 should be sold first the learned District Judge ought not to have interfered in appeal with that order. On behalf of the respondents the mortgagee- decree-holders, it has been urged that the mortgagee-decree-holder is the person who has got the absolute right to lay down the order in which the properties that are mentioned in his decree should be sold and that the Court has no discretion to interfere with the order in which the mortgagee-decree-holder desires the sale to take place. I may say at the very outset that the question as to whether all the properties mentioned in the mortgage-decree should be advertised for sale or not does not arise in the present case and in fact the proceedings in the Court below passed that stage at which a question might arise.

(3.) Now, on behalf of the appellant reliance has been placed upon the terms of the mortgage- decree which, it may be mentioned, strictly follows the words of Order XXXIV, Rule 4 of the Civil Procedure Code it being stated therein that the mortgaged property or a sufficient part thereof should be sold in default of the defendant paying the amount under the decree, as suggesting that the Court has a discretion in determining the order in which the properties are to be sold. Reliance has also been placed on behalf of the appellant upon a number of decisions to which I shall now refer. The first case relied upon is that of Mahomed Siddik v. Ram Lal Mandar 7 Ind. Cas. 4 : 15 C.W.N. 80. In that case two properties had been mortgaged by one deed and subsequent to the said mortgage the mortgagor sold one of the properties to a third person. The mortgagee thereafter brought a suit on the mortgage and got a decree against the mortgagor as well as the transferee, and then applied for execution against both the properties, but the Court ordered that the execution should proceed against the property which still belonged to the mortgagor. On that order being passed the mortgagee had the petition for execution dismissed and thereafter made a fresh application for execution against the property which the judgment-debtor had transferred in favour of the third party. This Court in dealing with that case made certain observations which are to the effect that the discretion as to the order in which execution should issue is vested in the Court alone and the decree-holder cannot be allowed to fetter the hands of the Court by suggesting a particular order in which the properties should be sold. The next case to which reference has been made is the decision of Rajkeshwar Prasad Narain Singh Vs. Muhammad Khalilul Rahman 78 Ind. Cas. 796 : 3 Pat. 522 : 5 P.L.T. 223; A.I.R. 1924 Pat. 459. In that case it was laid down that ordinarily the right of selling property in execution of a mortgage-decree in a particular order rests with the decree holder, but that a subsequent mortgagee who has purchased a property in execution of a decree on his own mortgage is entitled to compel the prior mortgagee to proceed against properties not included in the subsequent mortgage before proceeding against the properties included in his own mortgage even though at the time of his purchase although not at the date of his mortgage, he was aware of the existence of the prior mortgage. The next case to which our attention has been drawn is that of Bhagwan Chandra Das V/s. Dharam Narain Das 84 Ind. Cas. 203 : 3 Pat. 962 : 2 Pat. L.R. 242; A.I.R. 1924 Pat. 802 : (1925) Pat. 62: 6 P.L.T. 392 where it was broadly laid down that the holder of a decree on a mortgage is entitled in execution of the decree to have all the mortgaged properties advertised and put up to sale even though a part of the property had been purchased by a stranger but that it is entirely in the discretion of the Court to direct in which order the properties should be sold. The learned Judges in their judgment in that case purported to follow the decision of this Court in the case of Mahomed Siddik V/s. Ram Lal Mandar 7 Ind. Cas. 4 : 15 C.W.N. 80 to which I have already referred. Nextly, the appellant has relied upon the Full Bench decision of the Madras High Court in the case of Appaya V/s. Rangayya 31 M. 419 : 3 M.L.T. 287 : 18 M.L.J. 229. In this case it was laid down that a bona fide purchaser, who purchases for value a portion of the mortgaged property without notice of such mortgage, has no right, in a suit by the mortgagee to enforce his mortgage, to insist that the portion which had been sold to him must be proceeded against first and the portion purchased by him must be sold only if there is any balance due, but under Secs.67 and 68 of the Transfer of Property Act, the mortgagee is entitled to an order that the mortgaged property or a sufficient part thereof should be sold on default of payment: but that it is competent to a Court under Section 88 of the Transfer of Property Act to order a sufficient portion of the mortgaged property to be sold and if the portion not sold by the mortgagor is sufficient, and if the mortgagee will not be prejudiced, the Court may by its decree direct such unsold portion to be sold first and if the decree directs the sale of the whole property the Court, in execution, may first bring to sale the portion unsold and, if the sale-proceeds be sufficient, stop the sale of the portion sold by the mortgagor.