1. The District Munsif's action in dismissing the mortgagee-decree-holder's execution petition because he sought to bring only the 2nd item to sale cannot be supported. A decree-holder is entitled to execute his decree against any of the mortgaged properties [Vide Amir Chand v. Bukshe Sheo Pershad Singh 34 C. 13 : 4 Cri.L.J. 573.]
2. Admittedly the respondent has no right to have the properties marshalled under section 81 of the Transfer of Property Act; nor has he as against the mortgagee the right that Section 56 of that Act gives to a buyer against a seller when more properties than one are subject to a common charge. In Tara Prasanna Bose v. Nilmoni Khan 25 Ind. Cas. 118 : 41 C. 418 which was a case falling under that section, the mortgagee had foreclosed and was, therefore, treated as representing the seller. Nor it is alleged that the present is any case of fraud on the part of the mortgagee. The respondent as 2nd defendant was a party to the suit and he did not at the time of trial ask the Court to direct in the decree that the properties should be sold in any particular order.
3. Kommineri Appayya v. Mangala Rangayya 31 M. 419 and Ram Dhun Dhur v. Mohesh Chunder Chowdhury 9 C. 406 : 11 C.L.R. 565 : 4 Ind. Dec.919 relate to the equitable discretion that Courts possess to direct at the time of deciding the suit in what order the mortgaged items shall be sold.
4. As the decree in this case is silent on the point, the respondent has no legal right to demand that the decree-holder should execute his decree in any particular manner to suit the individual judgment-debtor.
5. Ramaswami Chetti v. Madura Mill Co., Limited 34 Ind. Cas. 338 : (1916) 1 M.W.N. 265 is a case of marshalling. There is an observation of Srinivasa Aiyangar, J., that the Court has a discretion even at the time of execution to direct that, if the sale of one item would be sufficient to satisfy the decree, that item should be sold first. This observation is not applicable to the facts of the present case.
6. The learned Subordinate Judge remarked that it was the mortgagee's fault that he did not sue on both his mortgages simultaneously. But, in our opinion, he was not bound to do so [Vide Subramania Ayyar v. Balasubramania Ayyar 30 Ind Cas. 317 : 38 M. 927 : 29 M.L.J. 195].
7. We reverse the orders of the lower Courts and direct the District Munsif to restore the petition to file and to pass orders for execution of the decree in the light of the foregoing remarks.
8. Costs in the District Munsif's Court and in this Court will be borne by the respondent.