T V VEDAVYASA AIYAR Vs. MADURA HINDU LABHA NIDHI CO LTD, THROUGH ITS SOLE DIRECTORS AND PROPRIETORS RMPVMRAMASWAMI CHETTIAR

JUDGEMENT

(1.) The 12th defendant is the appellant. Defendants 1 and 2 mortgaged certain items of property to one Naga Iyer who filed O.S.S. No. 61 of 1910 on the file of the Court of the Principal District Munsif of Madura to recover the sum due on his mortgage. He impleaded the puisne mortgagees, one of whom was the present plaintiff Nidhi. A decree was passed in Form 7, Appendix D of the Code of Civil Procedure. The amounts due to the plaintiff in the suit and the puisne mortgagee defendant were declared but the sale of the mortgaged properties was ordered only in case the defendant did not pay the amount found due to the plaintiff and the only right given to the puisne mortgagees was to share in the surplus if any arising out of the sale. One of the items of property was brought, to sale in execution of the decree but the. plaintiff decree-holder was satisfied as the amount due was paid under Order XXI, Rule 89 of the Code of Civil Procedure and the sale set aside. The property was sold by private sale to the appellant. As he did not pay the amount found in O.S.S. No. 61 of 1910 to be due to the 1st respondent herein he sued for the recovery of the amount due to him as his mortgagor. Various defences were raised the chief of which were (1) that the remedy of the plaintiff was by executing the decree in O.S.S. No. 61 of 1910 and not by separate suit and (2) that the second suit was barred the matter being res judicata. The Subordinate Judge overruled the objections raised and passed a decree which was confirmed by the District Judge.

(2.) I am of opinion that the decision of the lower courts is right. No. doubt the present plaintiff Nidhi was a party to O.S.S. No. 61 of 1910 as a puisne encumbrancer and the amount due to it was ascertained. The decree however did not direct redemption of the subsequent mortgagees and expressly authorised sale only in case the amount due to the first mortgagee was not paid within the time limited. The only right given to the puisne encumbrancers was the right to redeem the first mortgage and on sale to share in the surplus sale proceeds in order of priority.

(3.) In Sarat Chandra Boy Chowdhury v. Nahapiet (1910) I.L.R. 37 C. 907. the effect of a decree drawn up under Form 7, Appendix D of the Code was considered and Pugh, J. was of opinion that there was no right conferred in the mortgagee to get any relief at all if the mortgagor satisfied the first mortgagees claim. He observed " In my view, therefore, under the Code, second mortgagee is there simply for the purpose as indicated by Brett and Mookerjee, JJ. in Mackintosh v. Watkins (1904) 1 Cal. L J. 31 of receiving any surplus sale proceeds or of redeeming, and that he cannot take any independent action and treat the decree as in other respects in his favour." Referring to Kissory Mohan Roy v. Rally Churn Ghose (1899) I.L.R. 22 C. 100. the learned Judge distinguished the case on the ground that it related to a decree passed as in the Original Side of the High Court and in Mackintosh v. Watkins (1904) 1 C.L.J. 31 at 35 Brett, J. took the view that the practice and procedure followed on the Original Side was not to govern decrees passed by Courts in the mofussil which are governed by the Civil Procedure Code and the Transfer of Property Act.