Kuppuswami Ayyar, J.
1. The plaintiff-decree-holder is the appellant. His petition to execute the decree obtained for recovery of money due on a hypothecation deed was dismissed by the lower appellate Court upholding the objection of the judgment-debtor that the decree-holder could not execute for the entire amount decreed inasmuch as he has become the purchaser of the one of the items of the hypotheca in a sale held in execution of the decree on a subsequent mortgage in which he has purchased the property subject to the mortgage sued on. The first Court disallowed the objection of the judgment-debtor and directed execution to proceed as per the terms of the decree. But the lower appellate Court found that he could not execute the decree and instead of ascertaining for how much he could execute, dismissed the petition. Hence the appeal.
2. The mortgage deed on which the suit Was filed was executed on the 18th February, 1929, to the appellant by the father of the first defendant for himself and as testamentary guardian for the second defendant-respondent for Rs. 6,000. Three items of properties were mortgaged under it. The first item alone belonged to the first defendant's father, while the other two belonged to the respondent-second defendant. On the 17th September, 1930, there was another mortgage executed to this very plaintiff-appellant by the first defendant's father alone in respect of item I for Rs. 2,000. Subsequently on the 31st December, 1932, there was a subsequent mortgage in respect of items 1 and 2 by the first defendant's father for himself and as guardian of the second defendant to the third defendant for Rs. 3,000. On the 18th February, 1936, the present appellant filed O.S. No. 34 of 1936 on the file of the Sub-Court of Devakottah for recovery of the money due on the mortgage of the 17th September, 1930, against the first defendant alone and the subsequent mortgagee under the document of 31st December, 1932. A final decree was passed on the 2nd December, 1936. Execution was taken and the properties were purchased by the appellant-plaintiff in the sale held on the 26th July, 1937. The sale was confirmed on the 28th August, 1937. In the meanwhile on the 14th January, 1937, the plaintiff filed this suit, out of the execution proceedings in which this appeal arises, for recovery of the money due on the mortgage of the 18th February, 1929. The suit was O.S. No. 27 of 1937 on the file of the District Munsiff's Court 'of Devakottah. That was filed against all the defendants, namely, the respondent the first defendant and the subsequent mortgagee. On the 23rd August, 1937, it came up for trial and the case was closed. Judgment was delivered on the 6th September, 1937, and a preliminary decree was passed. A final decree was passed on the 31st March, 1938, and an execution application was filed on the 11th October, 1938, for recovery of the amount due under the decree. On the 26th April, 1939, the respondent-second defendant filed I.A. No. 449 of 1939 under Act IV of 1938 for scaling down the debt and an order was passed on the 4th August, 1939, scaling down the debt to Rs. 680-7-0. On the 21st March, 1940, this execution petition out of which this appeal arises was filed. The respondent objected to the execution on the ground that there had been a merger by reason of the fact that the decree-holder-plaintiff had purchased item 1 in execution of the decree in O.S. No. 34 of, 1936. The first Court held that it would not be open to him to raise this plea and that the executing Court could not go into that question. But the lower appellate Court held that the point could be gone into in execution and dismissed the petition. Hence the appeal.
3. The points for consideration are (1) whether the decree was fully satisfied by reason of the purchase of the property, item 1 by the decree-holder in execution of the decree in O.S. No. 34 of 1936 on the file of the Sub-Court, Devakottah, (2) if not, whether the decree has been discharged to any and what extent, (3) whether it is open to the respondent to raise the claim for contribution in execution proceedings, and (4) whether the respondent is barred by res judicata from raising that plea.
4. Points 1 and 2.--Even the learned Subordinate Judge does not find that the entire decree has been satisfied, though he chose to dismiss the execution petition. He merely stated that he was bound to record satisfaction pro tanto. There are three items of properties mortgaged, two of which are owned by the respondent and one by the first defendant whose interest has now passed to the decree-holder. As pointed out in Arunagiri Mudaliar v. Radhakrishna Iyer (1912) 17 I.C. 593 by reason of this purchase the mortgage had become split up and there will be a merger to the extent of the amount payable out of the properties purchased by him unless it was to the benefit of the mortgagee to keep his mortgagee's rights alive or he declared his intention either expressly or by necessary implication that he would keep his subsequently acquired rights distinct from his prior rights which he held as mortgagee. It is not shown or even pleaded that he had declared any such intention expressly Or impliedly. Consequently, the appellant will be bound to contribute the proportionate amount for payment of this mortgage debt in respect of the items purchased by him. So it cannot be said that the entire decree had been discharged. It will be only the proportionate amount payable in respect of item I that the plaintiff will be bound to give credit for the purpose of discharging this debt. No authority has been cited' for the position that there will be an automatic discharge of the debt by reason of the fact that the plaintiff is liable to contribute his portion of the amount for satisfying the debt.
5. Potnt 3.--The next point for consideration is whether this could be gone into in execution proceedings. The decree as it stands directs the sale of all the items of properties for Rs. 680-7-0 as scaled down. To contend that the plaintiff will be entitled to execute the decree only for a smaller amount than what is shown in the decree would be to vary the terms of the decree and I do not think it will be open to a party to contend that anything less than what is payable under the decree is ' payable unless any event subsequent to the passing of the decree had resulted in the discharge or extinguishment of the decree debt. In this case the sale to the appellant was confirmed on the 28th August, 1937. The preliminary decree was passed only on 6th September, 1937, and the decree which is now sought to be executed was passed on the 31st March, 1938. It cannot, therefore, be said that it is an event which happened subsequent to the passing of the decree which automatically extinguished any' portion of the decree-debt. The question as to whether such an equity as between the judgment-debtor and the decree-holder could be adjusted in execution proceedings was considered by the Calcutta High Court in Amirchand v. Bikshi Sheo Pershad Singh (1912) 17 I.C. 593 and if was held that the judgment-debtor should not be held to raise the objection in the execution proceedings. The same question had to be considered by the Patna High Court in Sarayulal v. Bayandth Prasad : (1914)27MLJ640 and it was found that an enquiry as to the rateable distribution of the mortgage debt : could not be made in execution proceedings without serious complications. In C.M.A. No. 142 of 1937, also King, J., was of opinion that such an equity ought not to be allowed to be adjusted in execution proceedings. I agree with those rulings and do not think this is a matter that could be gone into in execution proceedings.
6. Further it cannot be said that the appellant could not have raised this point at an earlier stage. The respondent was made aware of the sale even during the course of the trial of the suit and this is referred to by the learned Subordinate Judge himself in paragraph 11 of his judgment. Vide also Ex. A. It is true that the evidence was closed on the 23rd August, 1937, though judgment was pronounced on the 6th September, 1937. But then the decree which is now sought to be executed was passed only on the 31st March, 1938.' By then there was ample opportunity for the respondents to have moved the Court. If it is to be contended--and it is not so contended--that the point could not be raised on a petition for passing a final decree in pursuance of the preliminary decree, it would equally follow that it will not be open to the judgment-debtors to raise it in execution proceedings as it would amount to a variation of the decree sought to be executed. The fact is that it was not raised. I therefore do not think the learned Subordinate Judge was justified in finding that the question could be gone into in execution proceedings. The respondent's remedy, if any, will be by means of a separate suit because it is an event which happened subsequent to the filing of the plaint in O.S. No. 34 of 1937 which entitled the respondent to the claim for contribution in respect of this debt, and if the appellant who is bound to contribute, ignores it and also resists the claims of the respondent to have it determined in these proceedings, the only course will be to file a separate suit.
7. In the result the second appeal is allowed, the order of the lower appellate Court is set aside and the petition is remanded to the first Court for being dealt with in the light of the observations made above. The respondent will pay the appellant's costs both in this and in the lower appellate Court.
8. Leave refused.