1. This is an appeal under Clause 15, Letters Patent against the judgment of Viswanatha Sastri J., dismissing S. A. No. 1178 of 1947, with his leave. The appeal arises out of a - suit-brought by the-original respondent to recover the amount due-under a mortgage deed dated 24-1-1927, executed by one Muthu Goundan to one Kanhayya Reddi for Rs. 1000. The respondent claimed under art assignment from the original mortgagee. The mortgaged property comprised three items. Subsequent to the mortgage, by a sale deed dated 4-6-1941, Muthu Goundan conveyed to defendant 1 a moiety of items 1 and 2 of the mortgaged properties. On the same day, a brother of Muthu Goundan sold. the other moiety in these items to defendant 2. The third item continued to remain with the mortgagor.
The suit was brought against the purchaser as^ defendants 1 and 2, hut the original mortgagor was not made a party. The plaint schedule, however, included item 3 also, though the mortgagor who-was in possession of it was not made a party. But at the time of the trial, the plaintiff's vakil made-an endorsement on the plaint that he did not claim any relief against item 3 and that that plaintiff exonerated it from the suit. The suit was,, therefore, tried only against defendants 1 and 2. The learned Subordinate Judge who tried the suit dismissed it as against defendant 2 as he held that the mortgage executed by Muthu Goundan was not binding on his brother whose share in items 1 and 2 was purchased by defendant 2.
That dismissal became final because the appeal filed by the plaintiff was dismissed as out of time by the learned District Judge of North Arcot. The-learned Subordinate Judge decreed the suit against the share of Muthu Goundan in items 1 and 2 in the hands of defendant 1. There was an appeal by defendant 1, but that was dismissed by the learned District Judge, He then preferred a second appeal' to this court, viz., S. A. No. 1178 of 1947, which was also dismissed by Viswanatha Sastri J. Pending-the Letters Patent Appeal, defendant 1 appellantdied and his legal representatives were also brought on record.
2. Mr. K. Bhashyam Aiyangar, learned counselfor the appellants, raised two contentions in themain. But both the contentions were founded onthe fact that the original mortgagor, Muthu Goundan, had not been wade a party to the suit. Thefirst contention was that defendant 1 was entitledto the right of marshalling conferred by Section 56,T. P. Act as it now stands after the amending Actof 1929. The view taken by Viswanatha Sastri J.was that the section as it now stands does notapply to the present case which is covered by thesection as it stood before the amendment. Thesection as it stood originally was as follows:
'Where two properties are subject to a commoncharge, and one of the properties is sold, thebuyer is, as against the seller, in the absence ofa contract to the contrary, entitled to have thecharge satisfied out of the other properties, sofar as such property will extend'.
It was well established that this provision did not entitle the purchaser to claim marshalling as against the mortgagee himself. The mortgagee had a right to proceed against whatever property he chose to realise the sum due to him under the mortgage and he could not be compelled to split his security. The purchaser of a portion of the property was not entitled to insist on an abatement of the amount due in respect of the mortgage proportionate to the value of the property in his hands. That this was the law, in any event so far as this court was concerned, on the construction of the original section, was not seriously disputed by Mr. Bhashyam Aiyangar. Indeed, he could not do that, having regard to the ruling of the Full Bench of this Court in -- 'Perumal Pillai v. Raman Chettiar', AIR 1918 Mad 1030 (A).
It was there held that a mortgagee releasing from the suit a portion of the mortgaged property was not bound to abate a proportionate part of the debt and was entitled to recover the whole of the mortgage amount from any portion of the mortgaged property. The contention of Mr. Bhashyam Aiyangar, therefore, was that the section which was substituted for the original Section 56 by the Amending Act and which stands today should be applied to his case. That provision does certainly give right to the purchaser of one of the properties mortgaged to claim marshalling even as against the mortgagee, because it says he will be entitled to have the mortgage debt satisfied out of the property not sold to him so far as the same will extend. In the present case, the date of the mortgage is 24-1-1927, that is to say, prior to the passing of the Amending Act.
Section 63 of the Amending Act 20 of 1929 provides 'inter alia' that nothing in the provisions of the Act mentioned in that section which include the provision substituting for the old Section 56 of the present section, shall he deemed in any way to affect the terms of incidents of any transfer of property effected before 1-4-1930, or any right, title, obligation, or liability already acquired or incurred before such date, or any remedy or proceeding in respect of such title, obligation or liability. This, it may be remarked, is merely a statement of the general law relating to interpretationof statutes, some of the principles of which arefound embodied in the General Clauses Act. Mr. Bhashyam Aiyangar contended firstly, that the mortgagee had no right on the date on which the mortgage was executed, that is, before the coming, into force of the Amending Act, which continued to remain unaffected by the amendment, and secondly, that even if there is any right, it would accrue only at the time of the enforcement of the mortgage, which was certainly long after the amending Act.
He tried to build up some argument on the fact that the provision in the General Clauses Act (Section 6) mentions in addition to right, obligation, liability etc., also 'privilege'. Privilege is not mentioned as such in Section 63(c) of the Amending Act of 1929 and therefore any privilege which the mortgagee might have had of recovering the entire amount oi the mortgage money payable to him from any part of the security was not saved by Section 63 of the Amending Act. We are unable to agree with this contention.
We have no hesitation in holding that the mortgagee had a right which accrued to him on the date of the mortgage itself of realising, if he chose, the entire amount due to him from any part of the mortgaged property. Such a right was not subject to any right of marshalling at the instance of the purchaser of a portion at the hypotheca. To speak of this right as a mere privilege is not correct. Even assuming that all that the mortgagee had was privilege, even then under Section 6 of the General Clauses Act, that privilege itself would not be taken away except by express enactment or necessary intendment by the amending Act. We therefore agree with the learned Judge, Viswanatha Sastri J. that notwithstanding the amending Act which came into force by the time of the institution of the suit, the rights of the parties are governed by the original Section 56 under which the purchaser of any portion of the hypothecated property did not have the right of marshalling as against the mortgagee.
3. Mr. Bhashyam Aiyangar's next contention was a plea of nonjoinder. Under Order 34 Rule 1, C. P. C. all the persons interested, in the equity of redemption are to be made parties. So the mortgagee could not he allowed to deliberately exclude the mortgagor himself who certainly was interested in the equity of redemption so far as item 3 was concerned and claim to recover the entire money from the purchaser only. So his argument ran. Having regard to the terms of Order 1, Rule 9, C. P. C., learned counsel could not insist upon a dismissal of the suit. But he argued that even if the suit be not dismissed, the mortgagee should, not be given anything more than a proportionate share of the mortgage money, to be recovered from the part of the mortgaged property in the hands of the purchaser. Mr. Bhashyam Aiyangar sought to rely upon a decision of this court in -- 'Periakaruppa Pillai v. Satyanarayanamurthi' : AIR1937Mad136 , as lending him some support to his argument.
But we think that decision has no application whatever to the facts of this case. That was a suit for redemption, and it was held that in spite of the integrity of the mortgage being broken bythe mortgagee, one of several mortgagors or a purchaser of a portion of the equity of redemption was entitled to redeem the whole property subject to the equities in favour of other persons. In that case, one of the persons interested in the equity of redemption was not made a party. It was found, that he had been deliberately Omitted. Such omission, however, did not entail a dismissal of the suit, but the plaintiff could not he given the only relief of redeeming that part of the mortgaged properly in which the plaintiff was interested on payment of a proportionate amount but he was not entitled to the larger relief of redemption of the entire property.
In that case, it had been found that the integrity of the mortgage has been broken by the mortgagee himself. It was therefore possible to direct a partial redemption at the instance of a person interested in a part of the equity of redemption. We fail to see how the principle of this decision can apply to the present case. As the suit cannot be dismissed on account of the omission to implead the mortgagor as a party and as defendant 1 purchaser cannot claim any abatement by reason of the fact that the mortgagee had given up the items in the possession of the mortgagor, the decree passed by the courts below and confirmed by the learned Judge in second appeal was the proper decree to be passed.
4. Mr. Bhashyam Aiyangar wanted us even now to exercise the power which we undoubtedly have under Order 1 Rule 10, C. P. C., to implead the mortgagor or her representatives as parties to the suit. He pointed out that the plaintiff deliberatley omitted to join the mortgagor as a defendant because he was afraid that on an application of the provisions of Madras Act 4 of 1938 the mortgage debt would be scaled down and even the purchaser may become entitled to the benefit of the scaling down. But that danger is now completely averted by reason of the decision of the Full Bench of this court in -- 'Venkatavadhamulu v. Ramayya Garu', : AIR1954Mad383 (C). This may be true, but we see no justification for fmpJeading the mortgagor at this late stage and to remand the suit to the trial court practically for a re-trial of the suit.
As laid down in AIR 1918 Mad 1030 (A), ' the right of defendant 1 to contribution against the original mortgagor is not affected by the decision in this suit granting relief to the mortgagee. We are therefore convinced that this is not a case in which we should add the mortgagor as a party at this late hour. Mr. Bhashyam Aiyangar made a 'Paint attempt to argue that the release of one of the items mortgaged by itself brought about a splitting up of the mortgage. We are unable to agree with the contention in the absence of any authority. We are inclined to hold that it has no such effect. We agree with Viswanatha Sastri J. that the conclusion arrived at by the two courts below is correct.
5. The Letters Patent Appeal is, therefore, dismissed with costs.