BRAHMANDAM VENKATA LAKSHMI NARAYANA ROW Vs. ALLAMANENI VENKAYYA

JUDGEMENT

(1.) As the Subordinate Judge has dismissed the plaintiff s suit on the preliminary ground that it is barred by Section 11 and by Section 47 of the Civil Procedure Code, it is not necessary to state all the facts of the case which are a little complicated. The question arises in these circumstances. Plaintiff s father, as puisne mortgagee, was made a party to each of the two suits of the prior mortgagees, 17th and 18th defendants, brought to enforce their mortgages by sale of the hypotheca. He did not appear and raise any pleas; decrees were passed in both suits in the usual form under Section 88, Transfer of Property Act which was then in force, and naturally the decrees made no mention of the puisne mortgagee s right to redeem ; as to the surplus sale-proceeds, if any, the order was that they were to be paid to defendant or other persons entitled to them." Orders absolute were subsequently obtained but before any sale in Court-auction took place, the mortgaged properties were sold by private arrangement to the 14th defendant who was to pay the sale-proceeds to the decree-holders. Sale-deeds were accordingly executed to him by the mortgagors and one decree was satisfied in full and the other in part by him. The question for our decision is, whether, in the above circumstances, this suit by the. plaintiff as the puisne mortgagee to enforce his mortgage by sale of the property mortgaged subject to the prior mortgagee s claim is barred either by Section 11 or by Section 47, Civil Procedure Code.

(2.) As stated above, the Subordinate Judge has answered the question in the affirmative, but. we are unable to support his view. The objection based on Section -47, Civil Procedure Code, may be considered first. For that section to apply, the question raised in the second suit should relate to the execution, discharge or satisfaction of the previous/decree. The relief claimed must be such as could be obtained by execution proceedings. That depends on the terms of the decree. The question is really concluded by the ruling of the Privy Council in Gopi Narain Khauna v. Bansidhar 27 A. 325 : 9 C.W.N. 577 : 2 A.L.J. 336 : 2 C.L.J. 173 : 7 Bom L.R. 427 : 15 M.L.J. 191 : 32 I.A. 123 : 8 Sar. P.C.J. 799 (P.C.), where their Lordships-held that where the decree did not provide for the working out of the rights of the puisne incumbrancer without additions to it which the executing Court had no power to make, a new decree was necessary for the purpose and Section 244 (now Section 47) of the old Civil Procedure Code would not bar the second suit. It is impossible to hold in the present case that on the terms of the decree here, plaintiff could have got the relief, he now seeks by execution. The question whether ha has lost his right by not getting a proper decree is irrelevant, in considering the applicability of Section 47.

(3.) It has been held that even when a puisne mortgagee is expressly given by the decree a right to redeem and a right to share in the surplus sale-proceeds, he is not barred from bringing a fresh suit for sale against the mortgagor, on the ground that in execution of a prior mortgagee s decree, when it is in the form given in Appendix D (1st Schedule, Form 7), he is not entitled to insist on being redeemed himself or to get the property sold for his debt See Sarat Chandra Roy v. Nahapiet 8 Ind. Cas. 1142 : 37 C. 907, Mackintosh v. Waticins 1 C.L.J. 31; Saruripgar Begam. v. Baroda Kant Hitter 5 Ind. Cas. 539 : 11 C.L.J. 563 at. p. 576 : 37 C. 626 : 14 C.W.N. 974. The ruling in Debendra Nath Sen v. Mirza. Abdul Samed 1 Ind. Cas. 264 : 10 C.L.J. 150 is also to the same effect, though there is an observation there that this suit would be barred if he was in a position to have his claim satisfied from the surplus proceeds. That must be understood as applying only to a case where the puisne mortgagee is given by the decree, itself the right to apply for sale of the property.