THAMMUL SOWCAR Vs. NATTU RAMADOSS REDDIAR

JUDGEMENT

(1.) The plaintiff is a first mortgagee aud is suing to enforce his mortgage which runs over A aud B schedule properties. In the suit he gave up his right over B schedule property on the ground that his mortgagor, the 1 defendant, had sold it to one Narasimhulu Chettjr and had credited the sale price to the interest on the mortgage, The 2nd defendant, the appellant has been joined in the suit as the purchaser of the equity of redemption in A schedule property.

(2.) He also appears to be the second mortgagee of A schedule property. He claims that in this suit he is entitled as second mortgagee so to marshall the burdens on A and B schedule properties as to compel the plaintiff to bring the B schedule pro-party to sale and recover from it as much of his mortgage-debt as he can before he proceeds against A schedule property and for that end the appellant maintains that his petition to bring the B schedule property purchaser Narasimhulu Ohetty on the record in order that this claim might be fought out in the suit was improperly rejected by the lower Court.

(3.) The validity of his claim turns on the correct interpretation of Section 81 of the Transfer of Property. Act. That section lays down in terms that the result of marshalling shall not prejudice the rights of the first mortgagee. Now, one of the rights of the mortgagee undoubtedly is to choose against which of several pro perties mortgaged to him he may proceed and he, therefore, cannot be hampered in such election by any consideration of obligation undertaken to others by his mortgagor subsequent to the contract with himself. It might be argued that he is not prejudiced in being compelled to proceed against the properties in any particular order so long as he recovers his money which is all he is concerned with. But that is not the way in which the law on the subject of marshalling has been interpreted. The English Law on the subject has usually been held to spring from a case decided by the Lord Chancellor Lord Hardwicke in Lanoy V/s. Athol (1) where the proposition is stated in broad terms: