PANDURANG KASHINATH PATIL Vs. SHRIHARI DEORAO DESHPANDE

JUDGEMENT

(1.) THIS appeal arises out of execution proceedings in civil suit No. 3-A of 1935 on the file of Mr. G.P. Bhutt, Additional District Judge, Chanda.

(2.) THE suit was brought by one Purushottam Sitaram Patil on the basis of a mortgage bond, dated 20th June 1918. The preliminary decree for sale was passed on 15th February 1936 and wa9 followed by the final decree on 13th February 1937. The mortgaged property comprised of a Re. 0-4-10 share in mauza Warora and a Re. 0 8-0 share in mauza Thorana with certain khudkasht land appurtenant to both the shares. One Jamnadas Potdar Firm of Nagpur (hereinafter called the Firm) which was impleaded in this suit as defendant i, (respondent 5 (i) before me), being a puisne mortgagee, had taken a mortgage, dated 3rd September 1926, which comprised of a Re. 0-4 10 share in mauza Warora and some other items of property with which we are not concerned for the purpose of this appeal. In execution of the Firm's decree, it had put the mortgaged property to sale, and in the auction sale, respondent 1, Shrihari Deshpande, bought the 4 anna 10 pie share of mauza Warora with appurtenant khudkasht lands on 20th June 1936. The prior mortgagee Purushottam Patil had obtained a simple money decree against the mortgagors and in execution thereof, the 8 annas Share of mauza Thorana with the khudkasht lands appurtenant thereto was put to sale, and it was purchased by the appellant, Pandurang Patil on 30th June 1936.

(3.) SHRIHARI Deshpande then presented his execution application, on 11th November 1940, and prayed therein that he should be allowed to proceed in execution only against the Thorana village share, in the hands of Pandurang Patil, in order to realise the whole decretal amount which he himself had already paid. This prayer was opposed by the appellant Pandurang Patil, on the ground that Shrihari Deshpande was not entitled to fasten the whole burden of the mort-gage liability upon one item of the property, viz., the 8-anna village share of Thorana in his hands, but that the 0-4-10 pie share of mauza Warora, which was in the hands of Shrihari Deshpande must also rateably contribute, towards the mortgage liability, under Section 82, Transfer of Property Act. It was also contended that the integrity of the mortgage was broken and that, under Section 60 of the Act, Shrihari Deshpande could not claim anything more than what was proportionately due as contribution towards the satisfaction of the mortgage decree.