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Srinivasa Ayyangar Vs. Bappu Iyer Alias V. Sambasiva Iyer - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in121Ind.Cas.844
AppellantSrinivasa Ayyangar
RespondentBappu Iyer Alias V. Sambasiva Iyer
Cases ReferredArunachala Valan v. Venkatarama Ayyar
Excerpt:
mortgage - mortgage-decree directing sale of properties in particular order--decree-holder, whether can deviate from such order. - .....release by the plaintiff's father was for the amount, and no more than the amount, for which the released property is rateably liable, the respondent cannot complain of it and the release is binding on all parties. if the facts turn put otherwise there may be some equity arising in favour of the respondent. how this equity will have to be worked out is a matter for consideration.3. the court below will, therefore, find also on the question... whether the release was for a proper consideration and if not, how is the equity in favour of the respondent to be worked out?4. time for findings is three months and 10 days are allowed for objections.5. this appeal came on for final hearing after return of the finding from the lower court on the issue referred to it for trial, and the court.....
Judgment:

1. Before deciding that the appellant (mortgage, decree-holder) should go through the form of bringing all the properties in Schedule I to sale before he applies for sale of the properties in Schedule II, we must have some findings on the facts of the case. There is no general rule that the mortgagee should literally stick to the terms of a decree even if it involves a mere farce. In Periasami Kone v. Muthia Chettiar 23 Ind. Cas. 515 : 38 M. 677 : 15 M.L.T. 232 it was held that the mortgagee cannot, at his own option, abandon his right of selling some of the properties mentioned in the decree before proceeding against other properties of the judgment-debtor. But if it appears that the judgment-debtor has no saleable interest in the properties directed to be sold, the decree-holder need not go through the farce of putting them up to sale. The decision in Kasi Krishnama Chariar v. Bogiammal 12 Ind. Cas. 439 : 22 M.L.J. 125; (1911) 2 M.W.N. 355 : 10 M.L.T. 525 and Shanmuga Pillai v. Ramanathan Chetii 17 M. 309 : 4 M.L.J. 91 contains the same principle. The decision in Arunachala Valan v. Venkatarama Ayyar 51 Ind. Cas. 84 : 38 M.L.C. 93 : 9 L.W. 538 : 26 M.L.T. 193 is not inconsistent with these decisions. Seshagiri Ayyar, J, says; 'the personal remedy should be enforced only when there is a deficiency after the sale of all the mortgaged property available for sale.' So that, one has to consider the question whether insistence on the plaintiff's selling all the properties in Schedule I amounts to a farce, because some of them have ceased to be the property of the judgment debtor and are not available for sale as his property. The lower Court has given no finding on the matter. We, therefore, must have a finding on the question--whether the plaintiff's adoptive father released some of the mortgaged properties in Schedule I to enable the mortgagor to sell'them to third parties and they have ceased to belong to the mortgagor.

2. It is contended for the respondent that such a release does not bind him as he thereby lost his rights of contribution against these properties. This is again a question of fact to be found on enquiry and evidence. If the release by the plaintiff's father was for the amount, and no more than the amount, for which the released property is rateably liable, the respondent cannot complain of it and the release is binding on all parties. If the facts turn put otherwise there may be some equity arising in favour of the respondent. How this equity will have to be worked out is a matter for consideration.

3. The Court below will, therefore, find also on the question... whether the release was for a proper consideration and if not, how is the equity in favour of the respondent to be worked out?

4. Time for findings is three months and 10 days are allowed for objections.

5. This appeal came on for final hearing after return of the finding from the lower Court on the issue referred to it for trial, and the Court delivered the following.

6. Judgment.--The findings now are in favour of the appellant. It is now suggested that out of the released property, 4 acres and odd remain in the hands of defendants Nos. 1 and 4, only the rest having been sold to alienees. The whole case has gone on up to now on the footing that all the properties (other than the 3 velis and odd already sold in execution) were released under Ex. A and were sold under Ex. C, and no point was sought to be raised on the basis of a discrepancy between the figures in Ex. A and Ex. C. The objections filed before us do not cover this point. The Subordinate Judge's finding proceeded on the assumption that the released properties are no more available for sale. We must disallow the objection on the ground that it is not open to the respondents any more. The result is that the appeal is allowed and the execution petition is restored to file for further execution according to law. The appellant will have costs in the appeal. The costs in the lower Court will be provided for in the further execution.


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