1. The appellant in the above appeal was the first defendant in O.S. No. 30 of 1934 on the file of the District Court, East Tanjore, at Negapatam. The main facts which led up to this appeal are the following:
The first defendant for himself and on behalf of his minor brother, the 2nd defendant, and the guardian of defendants 3 to 7 who are the sons of a cousin of the 1st and 2nd defendants gave a simple mortgage over some properties to the plaintiffs. The mortgage was sued on and resulted in a preliminary decree, dated 15th May, 1937 and a final decree, dated 28th January, 1938. It was held that the mortgage was not binding on the 2nd defendant and the decree fixed the amount payable by defendants 1 and 3 to 7 at Rs. 1,08,008. Defendants 3 to 7 filed Appeal No. 48 of 1938 in this Court contending that the mortgage was not binding on them and that their shares should not have been made liable. The 1st defendant was also a party to this appeal. The plaintiffs appealed in A.S. No. 248 of 1938 against the decree of the trial Court in so far as it refused them relief against the 2nd defendant's share. Both the appeals were against the preliminary decree. The Madras Agriculturists' Relief Act IV of 1938 came into force during the pendency of the appeals and petitions were filed by defendants 2 to 7 praying that the decree which may be passed by the High Court may be scaled down in accordance with the provisions of that Act. These petitions were sent down by the High Court to the trial Court for investigation and report. The 1st defendant participated in the investigation along with the other defendants and it was reported to the High Court that all the defendants were agriculturists. The High Court held that the mortgage was binding on the 2nd defendant and that his share also was therefore liable. The contention of defendants 3 to 7 that the mortgage was not binding on them was rejected, with the result that it was finally decided by the High Court that the mortgage was binding on the interests of all the mortgagors. Scaling down of the decree was ordered so far as defendants 2 to 7 were concerned while no scaling down was ordered with reference to the 1st defendant who made no application. Clause 3 of the decree of the High Court declares that the amount due from the 2nd defendant as scaled down is Rs. 49,255 apart from costs. Clause 4 contains a direction that the same amount should be paid by defendants 2 to 7 into Court. Clause 5 provides that in default of payment as directed above, the Other directions regarding the sale of the mortgaged properties and the payment to the plaintiffs of the amount due to them contained in the said decree of the lower Court shall apply in the case of the 2nd defendant also. This is followed by clause 6 which states that the decree of the lower Court 'in other respects subject to the directions in clauses 3 and 4 above and as against the 1st defendant be, and hereby is confirmed.' We may add that the preliminary decree of the lower Court providing that in default of the payment which had been directed, the plaintiff may apply to the Court for a final decree for the sale of the mortgaged property and that on such application being made the mortgaged property or a sufficient part thereof shall be directed to be sold, was in no way altered by the decree passed by the High Court in the appeals. That is to say, there was no specification of the different interests in the hypotheca of the several defendants.
2. The 1st defendant applied to the trial Court in I.A. No. 104 of 1942 for an amendment of the decree under Section 19 of Madras Act IV of 1938. This petition was dismissed. He also applied to the High Court for the re-hearing of the appeals and for permitting him to file an application to have the decree scaled down as against him. These petitions too were dismissed. A revised final decree was passed by the District Court on 25th September, 1943. This merely states that the payment directed by the preliminary decree of the trial Court dated 15th May, 1937, as modified in appeal by the High Court has not been made and proceeds to direct' that the mortgaged property in the aforesaid preliminary decree mentioned or a sufficient part thereof be sold.'
3. The decree was put into execution. There were three payments by defendants 2 to 7 of Rs. 24,000, 30,000 and 18,610-12-0 on 20th January, 1947, 27th January, 1947 and 17th February, 1947, respectively. On the 6th of March, 1947, the 1st defendant filed E.A. No. 78 of 1947 stating that the scaled down debt stood at Rs. 75,342-11-8 on 16th December, 1946, that as payments amounting to Rs. 72,610-12-0 had already been made, there was still due Rs. 3,200-1-4 and that making a small allowance for mistakes in calculations regarding interest or execution costs he was depositing along with his application Rs. 3,215 and prayed that the deposit should be accepted and full satisfaction of the decree should be entered up and the entire hypotheca released from the mortgage. This application was resisted by the decree-holders and the lower Court dismissed it. This appeal is against that order of dismissal.
4. The principal point that arises for determination is whether the 1st defendant can have the relief prayed for notwithstanding that so far as he was concerned the decree stood at well over one lakh of rupees representing the amount due under the terms of the mortgage without any scaling down under the provisions of Madras Act IV of 1938. It has been contended by Mr. Muthukrishna Iyer, counsel for the appellant, relying on a series of decisions that his client cannot be denied the relief now sought as one of several mortgagors can pay the mortgage amount and redeem the entire mortgage notwithstanding that he is interested only in a portion of the hypotheca and that as the lesser amount has been declared payable by defendants 2 to 7, the 1st defendant need pay only the amount for the purpose of getting the entire hypotheca discharged from the mortgage.
5. We must state at the very outset that in the working of the Madras Agriculturists' Relief Act alongside the provisions of the Transfer of Property Act several curious and novel situations have arisen for which it has not always been possible to find solutions which are completely, and perfectly logical.
6. Certain principles have, however, been evolved in the course of the application of the several provisions of the former Act in the light of which we consider that the question that has now arisen has to be judged.
7. The first of the decisions relied on by Mr. Muthukrishna Iyer is Arunachalam Pillai v. Seetharam Naidu (1941) 1 M.L.J. 561 : I.L.R. (1941) Mad. 930. In that case the mortgagors were agriculturists. The equity of redemption had, however, been purchased at a Court auction by a non-agriculturist. Certain subsequent encumbrancers in respect of one of the items of the hypotheca were also agriculturists. In a suit on the mortgage praying for the recovery of Rs. 8,500, a preliminary decree for sale was passed only for the reduced sum of Rs. 3,050 in accordance with the provisions of the Madras Agriculturists' Relief Act against all the defendants including the Court-auction-purchaser of the equity of redemption. The plaintiff mortgagee appealed to the High Court but his appeal was dismissed and the preliminary decree for sale was upheld. The following passage from the judgment of the High Court states the principle on which the decision proceeded:
When the 12th respondent purchased the properties in Court-auction, he took them subject to the burden of the appellant's mortgage and, if the burden is by reason of the provisions of Section 8 referred to above reduced without payment, the purchase proves to that extent an advantageous one, and there is nothing in the Act to deprive him of the fruits of his lucky purchase, even though he is not an agriculturist. He gets the benefit of the scaling down not because the provisions of the Act apply to him, for obviously they do not. but because such benefit is a necessary incident of his purchase under the general law and the Act does not deprive him of it.
In Marina Ammayi v. Mirza Bakhar Beg Sahib : AIR1941Mad557 , the facts were slightly different but the same result was reached. Here again the mortgagors were agriculturists. Some of the items of the hypotheca had been purchased by non-agriculturists. The mortgagors and the purchasers obtained a preliminary decree for redemption before Madras Act IV of 1938 came into operation. After the Act came into force the mortgagors applied under Section 19 and as more than twice the amount of the principal had already been paid to the decree-holder full satisfaction of the decree as a whole was entered up. The correctness of this was questioned in the High Court and it was contended on behalf of the decree-holder that satisfaction of the decree should have been entered up only as against the mortgagors-agriculturists, and not as against the purchasers-non-agriculturists. The contention was rejected and it was held that redemption of the mortgage as a whole could not be denied and that in entering up satisfaction of the decree as a whole the Court would only be allowing to the agriculturist-mortgagors the full benefits of the Act and not necessarily benefiting the non-agriculturists-purchasers of portions of the hypotheca. The decision in Ramier v. Srinivasiah : AIR1941Mad204 , to which we shall have occasion to refer at some length presently was distinguished.
8. Nachiappa Chettiar v. Ramachandra Reddiar : AIR1942Mad527 and Subramanian Chettiar v. Ramachandra Reddiarb (1946) 2 M.L.J. 429 arose out of the same litigation the facts of which may be shortly stated. The mortgagors, defendants 1 to 4 were agriculturists. Some of the items of the hypotheca were purchased by defendants 5 to 8 who were non-agriculturists and some other items by defendants 9 to 12 who were agriculturists. The 13th defendant who was a purchaser from the 9th defendant of three items was also an agriculturist. It is unnecessary to refer to the other defendants. A preliminary decree was passed on 13th September, 1937, providing that
defendants 1 to 4 and 5 to 13 do pay into Court on or before the 13th March, 1938, or any later date upto which time for payment may be extended by the Court, the said sum of Rs. 1,13,836-4-10.
After the Act came into force defendants 1 to 12 applied for amendment of the decree under Section 19. The applications of the mortgagors (defendants 1 to 4) and of defendants 9 to 12 were allowed and the amount was scaled down to Rs. 36,000. The application of defendants 5 to 8 was rejected on the ground that they were not agriculturists. They appealed to this Court in Appeal No. 295 of 1939. The judgment in the appeal is reported in Nachiappa Chettiar v. Ramachandra Reddiar : AIR1942Mad527 . Referring to defendants 5 to 8 the High Court observed:
These defendants are admittedly not agriculturists within the meaning of Madras Act IV of 1938 and cannot, therefore, put forward any claim under that Act to have the mortgage debt scaled down. But these defendants contend that, if the debt is scaled down at the instance of the mortgagor who is an agriculturist and claims the benefits of the Act, the properties purchased by these defendants subject to the suit mortgage could be proceeded against only for the scaled down amount and no more, under the general law relating to mortgages.
They then stated that the contention is supported by the decisions in Arunachalam Pillai v. Seetharam Naidu (1941) 1 M.L.J. 561 : I.L.R. (1941) Mad. 930 Marina Ammayi v. Mirza Bakhar Beg Sahib : AIR1941Mad557 , and Satyanarayanamurthi v. Sathiraju : AIR1942Mad525 , and an unreported decision in Appeals Nos. 118 and 119 of 1939. Ramier v. Srinivasiah ( : AIR1941Mad204 was again referred to and distinguished. We sent for the papers in the appeal reported in Nachiappa Chettiar v. Ramachandra Reddiar : AIR1942Mad527 , and find that the High Court directed the amendment of both the preliminary and final decrees in the following way. In the prelimiary decree it was directed that for the words ' debt due by the 9th defendant,' the words' debt due by defendants 5 to 8 and ' were to be substituted and similarly in the final decree. for the words ' the items which are in the possession of defendants 1 to 4 and 9 to 12 ' the words, ' the items which are in the possession of defendants 1 to 4, 5 to 8 and 9 to 12 ' were directed to be substituted. It should be observed that by this decision and by the decision in Arunachalam Pillai v. Seetharam Naidu (1941) 1 M.L.J. 561 : I.L.R. (1941) Mad. 930 the High Court held that when the mortgagors-agriculturists apply for scaling down, the preliminary decree for sale as also the final decree should direct the sale of the hypotheca only for the amount so scaled down notwithstanding that the purchasers of some or all of the items of the hypotheca are non-agriculturists. In other words if the mortgagee seeks to bring the hypotheca to sale he can only do so for the smaller amount though the purchaser is, ex-hypothesi, a non-agriculturist and may be thereby indirectly benefited by the scaling down. The subsequent happenings in the litigation which finally culminated in Subramanian Chettiar v. Ramachandra Reddiar (1946) 2 M.L.J. 429 have now to be told. Sometime after the disposal of A.S. Nos. 23 and 24 of 1938 which along with A.S. No. 295 of 1939 were dealt with by the High Court in its judgment dated 3rd February, 1942, a part of which has been reported in Nachiappa Chettiar v. Ramachandra Reddiar : AIR1942Mad527 , the 13th defendant applied for the amendment of the decree but his application was rejected on the ground that it was 'much too late to give effect to his contentions.' Subsequently the decree-holder initiated execution proceedings and in the course of such execution proceedings the scaled down amount of Rs. 36,000 with subsequent interest and incidental charges was deposited into Court at the instance of defendants 1 to 4 and others who had obtained relief under the Act and satisfaction of the decree was entered up so far as they were concerned. The 13th defendant thereupon applied for the entering up of satisfaction of the decree even as against himself on the ground that the mortgage debt being indivisible and having been discharged by payment of the scaled down amount by the mortgagors the whole debt was wiped out and the property purchased by him automatically became freed from the encumbrance. His application was rejected by the trial Court but was allowed by the High Court in its decision reported in Subramanian Cheettiar v. Ramachandra Reddiar (1946) 2 M.L.J. 429 . One clause in the final decree passed in that case which incorporated all the amendments which had been ordered from time to time may usefully be quoted here:
It is ordered and decreed that out of the items of the hypotheca the items which are in the possession of defendants 1 to 4, 5 to 8 and 9 to 12 be and are liable only for the sum of Rs. 36,000 with interest thereon at 6 1/4 per cent. per annum from 1st October, 1937 to 13th March, 1938 and thereafter at 6 per cent. per annum with full costs as allowed under the preliminary decree.
The argument in the High Court on behalf of the decree-holder was that the true effect of the decree was to fix the liability of each set of defendants separately and independently, so that when the liability of one set of defendants was reduced by the application of the provisions of the Act and a similar reduction was not expressly made as against other defendants the decree must be construed as operating in respect of the full amount as originally decreed as regards the latter. This argument was not accepted by the High Court and the learned Judges held that there was no apportionment of the liability under the mortgage as between the several sets of defendants:
The decree was for a single amount even as the amount due under the mortgage was a single liability. The amount has, no doubt, been reduced as regards persons who sought and obtained relief under the Madras Agriculturists' Relief Act....If the reduced debt of the mortgagor is paid, the hypotheca is freed from the encumbrance as against every person who claims interest in any part thereof.
Reference was made earlier in the judgment to the decisions in Nachiappa Chettiar v. Ramachandra Reddiar : AIR1942Mad527 , Marina Ammayi v. Mirza Bakhar Beg Sahib : AIR1941Mad557 , Arunachalam Pillai v. Seetharam Naidu (1941) 1 M.L.J. 561: I.L.R. (1941) Mad. 930 and Satyanarayanamurthi v. Sathiraju : AIR1942Mad525 , as laying down this principle.
9. Mr. Muthukrishna Iyer claims that the principle laid down in a series of decisions commencing with Marina Ammayi v. Mirza Bakhar Beg Sahib : AIR1941Mad557 , and ending with Subramanian Chettiar v. Ramachandra Reddiar (1946) 2 M.L.J. 429 applied to the present case, and that the 1st defendant's application must be allowed and a full satisfaction of the decree entered up.
10. Mr. Kesava Aiyangar, counsel for the respondents, argues contra and contends that the facts of the present case call for the application rather of the principle laid down in Ramier v. Srinivasiah : AIR1941Mad204 and Srinivasa Thathachariar v. Siva Subramania Chettiar : AIR1943Mad196 .
11. First, as to these cases. In Ramier v. Srinivasiah : AIR1941Mad204 which as already stated; came in for comment and discussion in almost every subsequent case, the mortgagor was not an agriculturist. The puisne mortgagee was an agriculturist and the sub-mortgagee from the puisne mortgagee was a non-agriculturist. The puisne mortgagee was entitled to relief under the Act while the sub-mortgagee was not. The puisne mortgagee's application for amendment of the decree was dismissed by the lower Court but the High Court allowed it repelling the contention that the debt payable by an agriculturist falls outside the purview of the. Act when it is also payable by a non-agriculturist. When it was pointed out that practical difficulties would arise in the working out of the rights of the parties if the puisne mortgagee's application for scaling down was to be allowed, the learned Judges indicated how, by adopting a suitable form, the decree could be drafted so as to give the agriculturist judgment-debtor the full benefit of the relief to which he is entitled under the Act while safeguarding the rights of the decree-holder as against those judgment-debtors who are not entitled to the benefits of the Act. This decision was referred to in Marina Ammayi v. Mirza Bakhar Beg Sahib : AIR1941Mad557 , and put aside as not applicable to a case where the mortgagors were agriculturists though the purchasers were not. In Arunachalam Pillai v. Seetharam Naidu (1941) 1 M.L.J. 561 : I.L.R. (1941) Mad. 547 after referring to the case in Ramier v. Srinivasiah : AIR1941Mad204 , the learned Judges stated that it did not follow from that decision that a non-agriculturist debtor could, in no circumstances be benefited by the scaling down of a debt under the provisions of the Act. In Nachiappa Chettiar v. Ramachandra Reddiar : AIR1942Mad527 , the learned Judges went further and after pointing out that in Ramier v. Srinivasiah1, the mortgagor was a non-agriculturist, they remarked that the observations in the judgment in that case 'even if a little too widely expressed must be understood with reference to the particular situation there dealt with and not as laying down any general proposition applicable to different facts.' Ramier v. Srinivasiah : AIR1941Mad204 was also distinguished on its facts in Satyanarayanamurthi v. Sathiraju : AIR1942Mad525 .
12. In Srinivasa Thathachariar v. Siva Subramania Chettiar : AIR1943Mad196 , which is the principal decision relied on by Mr. Kesava Iyengar, the mortgagor and the purchaser of some item of the hypotheca were non-agriculturists, while the purchaser of some other items was an agriculturist. The debt was scaled down at the instance of the agriculturist purchaser while a similar relief was refused to the non-agriculturist purchaser. On behalf of the former it was contended that he was entitled to redeem the security as a whole on payment of the amount found payable by him and the Court was bound to enter up satisfaction of the whole decree. The learned Judges did not accept this argument and held that in the case before them the security must be deemed to be split up. They did not consider that the principle of the decisions in Arunachalam Pillai v. Seetharam Naidu (1941) 1M.L.J.561 : I.L.R. (1941) Mad. Nachiappa Chettiar v. Ramachandra Reddiar : AIR1942Mad527 , and Marina Ammayi v. Mirza Bakhar Beg Sahib : AIR1941Mad557 , should be extended to a case where the mortgagor is not an agriculturist and the question arises between the purchasers of different portions of the hypotheca, one of whom is and the other is not an agriculturist. They referred to Ramier v. Srinivasiah : AIR1941Mad204 , as ruling the case before them and observed:
that the principle that a mortgage is indivisible and can only be redeemed as a whole has to be trenched upon to the extent necessary for giving effect to the provisions of the Act in cases like the present where the mortgagor is not an 'agriculturist' and a person deriving title from him and bound by the mortgage is an 'agriculturist.
Both the decisions relied on by the respondent's counsel dealt with cases where the mortgagors were non-agriculturists. That being so there was no question of a non-agriculturist purchaser getting the benefit of the Act in the right of the mortgagor by the application of the principle of the unity and indivisibility of the mortgage, because (ex-concession) the mortgagor was himself a non-agriculturist and could consequently have no relief under the Act. The problem that arose in those cases was merely whether, when one of two persons holding a derivative interest in the mortgaged property is an agriculturist and the other is not, the right of the former against the mortgagee could be given effect to without jeopardising the right of the mortgagee against the latter, assuming of course that the mortgagor is not an agriculturist. It was held that the two rights could be so worked. Where, however, the mortgagor-judgment-debtor is an agriculturist the principle of the unity and indivisibility of the mortgage comes into play and the purchaser-judgment-debtor though a non-agriculturist gets the benefit of the scaling down effected at the instance of the former. This brings us to the distinction which Mr. Kesva Iyengar suggests between the present case and the cases relied on for the appellant. He argues that the principle laid down in those cases is applicable only to a non-agriculturist purchaser who seeks indirectly the benefit of a scaling down ordered in favour of an agriculturist mortgagor and that the principle cannot be invoked in the present case because the 1st defendant is not a purchaser but is a co-mortgagor with defendants 2 to 7.
13. We may observe in passing that nothing turns on the fact that the 1st defendant is also an agriculturist as now found by the learned District Judge and as found also by the report submitted to the High Court during the pendency of A.S. Nos. 48 and 248 of 1938. What matters is that the 1st defendant did not succeed in getting the decree scaled down though his failure was the result of his own laches and dilatoriness.
14. We consider, however, that the principle underlying the cases relied on for the appellant is applicable to the present case notwithstanding the slight difference in the facts to which we have already adverted. In Narendra Narain Singh v. Dwaraka Lal Muddur the Judicial Committee pointed out at page 408 of the report how one of the several mortgagors can redeem the entire mortgage and proceed for contribution subsequently against his co-mortgagors. They say,
This is a mortgage for one entire sum, and the property although held in certain shares was mortgaged as a whole to the extent of five annas and a fraction, and was redeemable only upon payment of the entire sum. Each and every one of the mortgagors was interested in the payment of that money and the redemption of the estate and each and every one of them had a right by payment of the money to redeem the estate seeking his contribution from the others.
In Huthasanan Nambudri v. Parameswaran Nambudri I.L.R.(1899) Mad. 209 after stating that a mortgage for an entire sum is from its very purpose indivisible, Subramania Iyer, J., with whom Moore, J., concurred observed as follows:
This character of indivisibility exists not only with reference to the mortgagee who may generally be more benefited thereby, but also with reference to the mortgagor. And save as a matter of special arrangement and bargain entered into between all the persons interested, neither the mortgagor nor the mortgagee, nor persons acquiring through either a partial interest in the subject, can, under the mortgage, get relief except in consonance with the principle of indivisibility referred to.
It is obvious that defendants 2 to 7 could on payment of the scaled down amount, have the entire hypotheca exonerated from the mortgage liability. It is equally manifest from the decisions in Arunachalam Pillai v. Seetharam Naidu (1941) 1 M.L.J. 561 : I.L.R. (1941) Mad. 930 and Nachiappa Chettiar v. Ramachandra Reddiar : AIR1942Mad527 , that the decree for sale, whether preliminary or final, should, in such cases and even where the relief of scaling down is denied to some of the judgment-debtors, direct the sale of the property only for the scaled down amount. We have already set out the relevant portions of the decree of the High Court giving directions as to the framing of the preliminary decree and also the revised final decree drawn up by the lower Court. There is nothing in them to show that any direction was intended or given in a manner different from what was held to be proper and legal in the two decisions just referred to. If, therefore, defendants 2 to 7 could, by payment of the scaled down amount, get the property freed from the burden of the mortgage and if the decree-holder could proceed to sell the mortgage security only for the reduced amount, there is no reason for holding that further, execution of the mortgage decree could not be resisted by the first defendant by payment of what still remains due out of the amount to which the decree was scaled down. The learned District Judge refused to apply the principle laid down in Subramanian Chettiar v. Ramachandra Reddiar (1946) 2 M.L.J. 429 and the cases which preceded it. He thought that the present case is distinguishable from Subramanian Chettiar v. Ramachandra Reddiar (1946) 2 M.L.J. 429. We are unable to see any substantial ground of distinction. It may be noticed incidentally that while in Subramanian Chettiar v. Ramachandra Reddiar (1946) 2 M.L.J. 429 there was a reference to the liability of the items of the hypotheca which were in the possession of defendants 1 to 4, 5 to 8 and 9 to 12 only for the reduced amount of Rs. 36,000 there is not in the present case, even that differentiation between the items in which defendants 2 to 7 may be interested and those in which the 1st defendant may be interested. In analysing the several cases cited before him the learned District Judge stated their effect in the form of four propositions. He enunciated the first of them as follows:
Where in a mortgage, some of the mortgagors are agriculturists and other mortgagors are non-agriculturists, there can be a decree for one amount (i.e., the scaled down amount) against the agriculturist-mortgagors and for another amount (an unsealed amount) against the non-agriculturist mortgagors.
He cited in support of the proposition in Ramier v. Srinivasiah : AIR1941Mad204 Mad. It is clear that the decision quoted is no authority for the proposition, as, in that case the mortgagor was as already stated a non-agriculturist while the puisne mortgagee was an agriculturist and the sub-mortgagee from him was an agriculturist. It is strange that there has been no reported decision where some of the mortgagors get the decree amount scaled down while other mortgagors do not succeed in doing so. For the reasons stated above we are of opinion that cases like that will be governed by the rule enunciated in the line of decisions of which Subramanian Chettiar v. Ramachandra Reddiar (1946) 2 M.L.J. 429 is the latest.
15. A further point has been taken by Mr. Kesava Iyengar that assuming the first defendant can have full satisfaction of the decree entered up after payment of the entire scaled down amount by defendants 2 to 7, he cannot himself move the Court for entering up such satisfaction of the decree when only a part of that amount is paid by defendants 2 to 7, himself offering to pay the balance. This objection found favour with the Court below and in support of it we have been referred to the decisions in Sree Rajah Vadravu Viswasundara Rao Bahadur v. Vadlamannati Kausalaramayya : AIR1946Mad434 , and Suganatha Mudaliar v. Kuppuswami Chetti : AIR1948Mad205 , where the relief enjoyed by a non-agriculturist purchaser of the whole or a part of the hypotheca when the burden on the property is lightened by the mortgagors being given relief under Madras Act IV of 1938 is described as a ' fortuitous benefit ' or as an ' accidental result.' It will be noticed, however, that the expressions were used while dealing with the question ' whether a non-agriculturist purchaser can move for the passing of a mortgage decree for a lesser amount when the mortgagor-agriculturist himself does not claim the relief and it was held that he cannot so move. When, however, the decree is scaled down at the instance of all the mortgagors but one as in this case and in view of the restriction imposed on the mortgagee's rights in such a case permitting him to proceed against the mortgage security only for the scaled down amount and no more, there is no logic in refusing to allow the remaining judgment-debtor to deposit the balance due and thereby resist the execution of the mortgage decree for anything more than the scaled down amount. It is no doubt somewhat odd that when a person is declared liable to pay a larger amount he should, on payment or tender of a smaller amount, get his property exonerated from liability, but this is inherent in and arises out of the proposition established by the decisions already dealt with, namely, that by the application of the principle of unity and indivisibility of a mortagage decree a non-agriculturist can indirectly get relief which he cannot directly get. If at the time when the first defendant deposited Rs. 3,215 into Court the decree-holders could take out execution proceedings against the mortgage security only for the realisation of that amount there is, in our opinion, no principle or compelling authority to hold that he cannot deposit the amount and save his property and that he must wait for defendants 2 to 7 to deposit that amount. In fact the argument on behalf of the respondents, decree-holders, goes much further and claims that they can proceed against portions of the hypotheca in which the 1st defendant is interested not merely for the balance remaining outstanding out of the scaled down amount but of the entire amount for which the 1st defendant was held to be liable less the amount so far realised by payment by the other judgment-debtors. On a construction of the decree in the light of the decisions which have laid down the true limits of the rights of the mortgagee in such cases we are unable to accept the contention. The decree cannot at all be read as providing for the realization of Rs. 49,000 from the shares of defendants 2 to 7 and of the balance from the share of the 1st defendant. There is no such splitting up or apportionment. It may also be pointed out that defendants 2 to 7 will not get the full benefit of the scaling down of the debt to which they are entitled if the decree were to be so read or even if the decree were to be read as permitting a realization of the larger amount by the sale of any portion of the hypotheca as they cannot, in either event, claim contribution from the 1st defendant.
16. It has next been argued by Mr. Kesava Iyengar that the appellant is precluded from claiming relief which he now seeks because of estoppel and constructive res judicata which are said to arise by what happened in the course of certain execution proceedings. In the first place it must be pointed out that there is no reference to any res judicata actual or constructive, in the statement of objections filed by respondents 1 and 2. In paragraph 11 of that statement the plea of estoppel is put forward in a vague way. It would appear that notice of the Execution Petition No. 2 of 1943 filed by the decree-holders was served on the 1st defendant. After he was so served there was an order dated 24th November, 1945 'Proclaim and sell on 28th January, 1946.' The properties were divided into convenient lots.' There was apparently an agreement between the 2nd defendant and the decree-holders that the former should pay Rs. 24,000 and get his properties which were lots 2 and 6, exonerated from the decree. This was done. A similar agreement between the decree-holders and defendants 3 to 7 resulted in the payment of two sums Rs. 30,000 and 18,610-12-0 by them and the stoppage of the sale of lots 1, 4 and 5 in which they were evidently interested. These three payments were all on or before 17th February, 1947. On the 20th February, 1947, the 1st defendant applied for the adjournment of the sale of lots 7 and 8 in which he was interested alleging that he had arranged with a third party for the payment of the amount due from him, the decree being on such payment assigned to the said person. With the consent of the decree-holders the sale was adjourned to 10th March, 1947. On the 6th March, however, the 1st respondent deposited the amount of Rs. 3,215 and filed the application out of which this civil miscellaneous appeal arises. It is not mentioned in the affidavit filed by the 1st defendant in support of the application for an adjournment on 20th February, 1947, what amount was due from him. According to his present contention Rs. 3,215 or a little less was alone due. Assuming that he offered to make the payment with the help of a third party to whom the decree is to be assigned and on the basis of such representation made the respondents agreed to the adjournment which the Court granted, it is difficult to find how any estoppel arises or how it operates. Before the date to which the sale stood adjourned the appellant paid what is said to be all that is due from him. Beyond stating that the receivers had changed this position to their detriment by the representation of the first defendant the statement of objections does not specify what the detriment was and how it was occasioned. There is a reference to the satisfaction of the claims against defendants 2 to 7 and the withdrawal of the appeal to the Privy Council filed against them by the decree-holders. It is difficult to see what bearing these facts can have on the plea of estoppel sought to be raised against the 1st defendant. In our opinion the learned District Judge rightly overruled this plea. Assuming that it is open to us to entertain the argument as to constructive res judicata notwithstanding the absence of any reference to it in the statement of objections, we must hold that there is no substance in it either. According to the 1st defendant even after the three payments made by defendants 2 to 7 there was still due Rs. 3,215 in order to make up even the scaled down amount of the decree. He could not have therefore, at that stage pleaded that there is no executable decree. It has been held that objections as to the amount of the decree can be raised in later execution proceedings though they were not raised in prior execution proceedings. See Ulaganatha Mudaliar v. Malavedu Alagappa Mudaliar : AIR1929Mad903 and that there can be no constructive res judicata as to the amount due under a decree by reason of the failure on the part of the judgment-debtor to object at an earlier stage in the execution proceedings to the figure claimed in the execution petition. (See Bapamma v. Vengayya : AIR1937Mad511 .)
17. We, therefore, overrule the pleas of estoppel and constructive res judicata and hold that the 1st defendant is not precluded from claiming the relief which he is now seeking by reason of anything which happened in the course of the execution proceedings. In the result we allow the appeal and order the petition filed by the first respondent as prayed for with costs here and in the Court below.