KOMMINENI APPAYYA Vs. MANGALA RANGAYYA

JUDGEMENT

(1.) The plaintiff, mortgagee, sues to recover his money by sale of the properties mortgaged, which consist of two parcels of land of which item No. 1 is in the possession of the 3rd defendant, a bona fide purchaser for value without notice of the plaintiff's prior mortgage. The 3 defendant, appellant, contends that the plaintiff is bound to proceed first against the property, item No. 2, not sold to him and his property No. 1 should be sold only for the balance, if any.

(2.) Under Section 67 of the Transfer of Property Act the plaintiff is entitled to an order that the properties mortgaged be sold and Section 88 of the same Act provides that the Court shall pass a decree that in default of the defendant paying the mortgage amount, the mortgaged property or a sufficient part be sold and the proceeds applied in discharge of the plaintiff's claim.

(3.) A second mortgagee of one of the properties mortgaged without notice of the 1st mortgage is entitled under Section 81 of the Transfer of Property Act to have the first mortgage debt paid, so far as it is possible, out of the other properties, but not so as to prejudice the rights of the first mortgagee or of any other person having acquired for valuable consideration an interest in either property. It thus appears that the 1 mortgage is the dominant right to be enforced. The 3 defendant is not a second mortgagee. It is not therefore a case for marshalling securities and does not fall "within this section.