ALAPATI BULLI VENKANNA Vs. KANTAMANI RAMANNA

JUDGEMENT

(1.) This appeal raises a question of marshalling. The appellant is the purchaser of one of several items mortgaged in favour of the plaintiff in the suit, namely item 3, under the suit mortgage, Ex. A, dated 24 August, 1921. This item was purchased by the eighth defendant in 1925 for a sum of Rs. 13,000. The appellant wanted that his property, namely, item 3, should be sold last after exhausting all the properties covered not only by the suit mortgage, Ex. A, but also the suit mortgage Ex. B of April, 1926, and even the properties in another District namely, Vizag mortgaged under Ex. C in 1930. This claim Was disallowed by the Court below and the eighth defendant appeals.

(2.) So far as the properties covered by Ex. C are concerned, the appellant's property, item 3 of A Schedule, is not included in it, and it is conceded before us that the appellant will not be entitled under Section 56 of the Transfer of Property Act to claim the right of marshalling as against Ex. C properties. This concession was obviously unavoidable because the words of the section themselves are very clear that the right of marshalling can be claimed only where "the owner of two or more properties mortgages them to one person and then sells one or more of the properties to another person". So far as the Ex. C properties are concerned, it is obvious that this condition is not satisfied. It is satisfied only so far as Ex. A properties are concerned. It follows therefore that the appellant is not entitled to ask that Ex. C properties should be sold before the item in which he has an interest, namely, item 3 of A Schedule, is sold.

(3.) Some argument was addressed to us with a view to make out a case apart, from Section 56 as if there was some other rule of law or equity, which entitled the appellant to marshal as against Ex. C properties even when the section defining the right of marshalling does not recognise such a right. He relied on the words "sufficient part" found in Order 34, Rules 4 and 5, Civil P. C., which give the Court the power to order the sale of the whole of the mortgaged property or a sufficient part thereof, as conferring upon the Court a power, apart from rules of law relating to marshalling contained in the Transfer of Property Act, to give relief in respect of marshalling to a wider extent than is recognised by the substantive jaw. Even assuming that this contention is right, without deciding it, it does not follow that the Court would be justified in using that power unless some recognised principle of law or equity justified the exercise of the power in favour of the appellant. It is not shown that there is any special equity in favour of the appellant so far as the Ex. C Schedule properties are concerned. The resort made to the provisions of Order 34, Rules 4 and 5 in certain decisions that were quoted to us was necessitated by the fact that those cases had to be decided under the old Act, before it was amended in 1929, which did not in so many words declare that the right of marshalling to the same extent as the doctrine of equity did, and it was therefore open to the Court in exercising its powers under the provision of Order 34, Rule 4 and 5 to exercise its discretionary power so as to give effect to the full right of marshalling as recognised by equity.