(MANCHIRAJU) VENKAYYA Vs. (VADALAMUDY) VENKATARAMAYYA

JUDGEMENT

(1.) The dispute in this case is only about a direction given in the decree of the lower Court that the properties sold to defendant 5 must be brought to sale first and those sold to defendant 4 should be sold, if necessary, afterwards. The appellant is defendant 5 and defendant 4 is the real contesting respondent. The suit was brought upon a mortgage Ex. A dated 15 December 1913 executed by defendants 1 and 2 and one Narayanaswami since deceased mortgaging the properties mentioned in the plaint schedule to the plaintiff. On 5th January 1914 defendant 2 alone, one of the mortgagors mortgaged his interest in item 2 of the properties in the former mortgage to defendant 4 who, it has been held, took the mortgage without notice of the former one. Defendant 4 brought a suit upon his mortgage and after decree bought the mortgaged properties himself by private sale on 26 June 1917. Defendant 5 purchased defendant 1's rights in the mortgaged properties by a sale deed Ex. 3, dated 22 June, 1921. In this suit which was brought by the plaintiff to enforce his mortgage of 15 December 1913, defendants 4 and 5 were the chief contesting defendants. Defendant 4's contention was that he had no notice of the suit mortgage at the time of his own mortgage of January 1914, that the plaintiff had been guilty of fraudulent conduct in not disclosing his mortgage and therefore was not entitled to the priority and that as defendant 2 executed the mortgage to the plaintiff only as surety on behalf of defendant 1, the plaintiff should be directed to recover his amount in the first instance from the share of defendant 1 and his brother, the deceased Narayanasami.

(2.) Defendant 5, contended that he was ready and willing to pay off the suit mortgage but did not do so because the mortgagee, plaintiff's father, had died and as regards the liability of the properties inter se, contended that they should be held proportionately liable. Three issues were framed: (1) Whether the plaintiff's mortgage was genuine and supported by consideration? (2) What marshalling rights, if any, defendants 4 and 6 to 9 were entitled to? (3) To what relief the plaintiff was entitled?

(3.) On issue 1 the Munsif found that the plaintiff's mortgage was genuine and supported by consideration and on issues 2 and 3 that defendant 2 joined in the suit mortgage as surety for defendant 1 and that though it was clear that on a mortgage like that, the plaintiff could proceed against all or any of the mortgaged properties at his choice it was right as between the defendants themselves to append a direction that the plaintiff should in the first instance proceed against the properties sold by defendant 1 to defendant 5. Defendant 5 appealed and the only question before the Subordinate Judge was whether the direction appended by the District Munsif as to the order in which the property should be sold could be upheld. The learned Subordinate Judge held that the case was not governed by Secs.81 and 82, T.P. Act, because defendants 4 and 5 relied upon sales in their favour and did not claim as mortgagees. But the learned Judge held that the Court could even in circumstances not justified by those sections make an order under Order 34, Rule 4 regulating the order for the sale of the mortgaged property, and founding himself upon the fact that defendant 4 when he took his mortgage in January 1914 had no notice of the plaintiff's mortgage of December 1913 whereas defendant 5 when he took his sale deed in June 1921 had notice of the plaintiff's mortgage, made the same direction which the District Munsif had made. The present appeal is by defendant 5 against that direction.