1. This is an appeal by the defendants and arises from an order passed by the learned Subordinate Judge of Budaun, dated 4th February 1928, modifying the final decree passed by the trial Court, dated 30th July 1927. Hashmat Ali, defendant 1, and Daud Husain, defendant 2 owned certain properties in mauza Jamoh and mouza Karaulia. Hashmat Ali was in possession of property in mouza Jamoh. Ghasi Ram and his minor nephew Ved Prakash defendants 4 and 5 were the purchasers of the equity of redemption in mouza Karaulia. An application was made by the two last mentioned persons in the trial Court before the passing of the preliminary decree that the Court should direct that the property in mouza Karaulia should not be sold in enforcement of the plaintiff's mortgage till the property in mouza Jamoh has been sold. An issue was framed as to whether Ghasi Ram, defendant 4, was entitled to got the property of Hashmat Ali mortgagor sold first. This issue was answered in the negative, and a preliminary decree was passed without prescribing the order in which the mortgaged properties had to be sold.
2. On an application being made for the preparation of the final decree, Ghasi Ram applied on 20th July 1927 renewing his prayer that the order in which the properties should be sold should be indicated in the final decree and that his property in mauza Karaulia should not be sold till execution in respect of the other property had taken place. The mortgagee decree-holder appears to have been a consenting party to this scheme. Lala Banarsi Das, defendant 3, who was also a subsequent transferee of the mortgaged properties did not appear in Court to contest this application. The trial Court allowed this application on the ground that the opposite party had no objection. It therefore directed that the mortgaged properties be sold in two lots and that the property in possession of defendant 1 should be sold in one lot before the other property was sold and if the sale proceeds were not sufficient to satisfy the decree-holder's claim then the property in possession of Ghasi Ram was to be sold. Lala Banarsi Das appealed to the lower appellate Court. He contended that it was not within the competence of the trial Court to pass a final decree in deviation from the preliminary decree and to fetter the hands of the mortgagee as to the order in which he might choose to sell the mortgaged properties in enforcement of his claim. This plea found favour with the appellate Court. We are of opinion that ordinarily speaking it is not desirable that any conditions should be introduced; in the final decree which might be in form, in substance or in effect inconistent with the preliminary decree. But the law in this respect appears to have-been stated by the lower appellate Court a little too broadly. The lower appellate Court observes:
It is true that the decree-holder has the right to put any property to sale but the lower Court has not left his hands unfettered.
3. We are not prepared to subscribe to the proposition that a mortgagee decree-holder has an unfettered right to sell the property at his sweet will and pleasure in any order that he chooses. Cases are conceivable in which, if the decree-holder is allowed to sell the property in an order according to his own liking, it might operate seriously to the prejudice of other holders of subordinate interests in the property.
4. Stress has been laid that a similar prayer made by Ghasi Ram before the passing of the preliminary decree has been refused and that the order operates-as res judicata. We are of opinion that the order does not amount to any thing more than this that Ghasi Ram has no absolute right in law to claim that his property should not be sold in the first, instance and that the property belonging to the other transferee should be put up. for sale first. The order in question, in our view, does not operate as res judicata.
5. We are further of opinion that we ought not to introduce any conditions into the final decree which has been passed in this case. At the same time, we would like to indicate and emphasise that upon equitable considerations the Court which has to execute the final decree may and ought to prescribe the order in which the mortgaged properties 'are to be sold. When the question as to which of the properties has to be sold first comes up before the Court, the solution of the question will depend upon a determination of the equities between the holders of the properties.
6. Subject to the observations contained above, we are of opinion that the decree passed by the Court below is correct. We would accordingly dismiss this appeal. We make no order as to costs.