SRINIVASA AYYANGAR Vs. BAPPU IYER ALIAS VSAMBASIVA IYER

JUDGEMENT

(1.) Before deciding that the appellant (mortgage, decree-holder) should go through the form of bringing all the properties in Schedule I to sale before he applies for sale of the properties in Schedule II, we must have some findings on the facts of the case. There is no general rule that the mortgagee should literally stick to the terms of a decree even if it involves a mere farce. In Periasami Kone V/s. Muthia Chettiar 23 Ind. Cas. 515 : 38 M. 677 : 15 M.L.T. 232 it was held that the mortgagee cannot, at his own option, abandon his right of selling some of the properties mentioned in the decree before proceeding against other properties of the judgment-debtor. But if it appears that the judgment-debtor has no saleable interest in the properties directed to be sold, the decree-holder need not go through the farce of putting them up to sale. The decision in Kasi Krishnama Chariar V/s. Bogiammal 12 Ind. Cas. 439 : 22 M.L.J. 125; (1911) 2 M.W.N. 355 : 10 M.L.T. 525 and Shanmuga Pillai V/s. Ramanathan Chetii 17 M. 309 : 4 M.L.J. 91 contains the same principle. The decision in Arunachala Valan v. Venkatarama Ayyar 51 Ind. Cas. 84 : 38 M.L.C. 93 : 9 L.W. 538 : 26 M.L.T. 193 is not inconsistent with these decisions. Seshagiri Ayyar, J, says; "the personal remedy should be enforced only when there is a deficiency after the sale of all the mortgaged property available for sale." So that, one has to consider the question whether insistence on the plaintiff's selling all the properties in Schedule I amounts to a farce, because some of them have ceased to be the property of the judgment debtor and are not available for sale as his property. The lower Court has given no finding on the matter. We, therefore, must have a finding on the question- -whether the plaintiff's adoptive father released some of the mortgaged properties in Schedule I to enable the mortgagor to sell them to third parties and they have ceased to belong to the mortgagor.

(2.) It is contended for the respondent that such a release does not bind him as he thereby lost his rights of contribution against these properties. This is again a question of fact to be found on enquiry and evidence. If the release by the plaintiff's father was for the amount, and no more than the amount, for which the released property is rateably liable, the respondent cannot complain of it and the release is binding on all parties. If the facts turn put otherwise there may be some equity arising in favour of the respondent. How this equity will have to be worked out is a matter for consideration.

(3.) The Court below will, therefore, find also on the question... whether the release was for a proper consideration and if not, how is the equity in favour of the respondent to be worked out?