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Mathu K.R.V. Arunachalam Chetty and ors. Vs. M.R.R.M. Murugappa Chetty and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in36Ind.Cas.516
AppellantMathu K.R.V. Arunachalam Chetty and ors.
RespondentM.R.R.M. Murugappa Chetty and ors.
Cases ReferredSurjtram Marwari v. Barhamdeo Persad
Excerpt:
mortgage decree - direction to sell properties in particular order, power of court to give. - .....conceded by mr. ananthakrishna iyer that by virtue of this right the mortgagee in execution of a mortgage decree can ask for the sale of the properties included in the mortgage in any order he chooses. if he can do that, we are unable to find any principle which prevents him from claiming and the court from granting that relief, at the trial, by the decree. it may be, and indeed it was, admitted that the court has power to control this right of the mortgagee to prevent a fraudulent or unconscionable use of it and to adjust the equities of persons who have bona fide acquired rights in the mortgaged properties after the mortgage, though they may not be entitled as of right to marshalling under section 81 of the transfer of property act see imam ali v. baij nath ram sahu 10 c.w.n. 551 : 3.....
Judgment:

1. At first we were inclined to doubt if the Court had power at the instance of a mortgagee to prescribe by its decree the order in which the mortgaged properties are to be sold; but after hearing a full argument from Mr. Rangachariar, we think the Court had the power to do so.

2. The mortgagee is ordinarily entitled to realise the debt due to him by proceeding against the whole or any of the parcels of land mortgaged to him. It is conceded by Mr. Ananthakrishna Iyer that by virtue of this right the mortgagee in execution of a mortgage decree can ask for the sale of the properties included in the mortgage in any order he chooses. If he can do that, we are unable to find any principle which prevents him from claiming and the Court from granting that relief, at the trial, by the decree. It may be, and indeed it was, admitted that the Court has power to control this right of the mortgagee to prevent a fraudulent or unconscionable use of it and to adjust the equities of persons who have bona fide acquired rights in the mortgaged properties after the mortgage, though they may not be entitled as of right to marshalling under Section 81 of the Transfer of Property Act see Imam Ali v. Baij Nath Ram Sahu 10 C.W.N. 551 : 3 C.L.J. 576 and. Kommineri Appayya v. Maugala Rungayya 18 M.L.J. 229 : 3 M.L.T. 287. This is not a case in which the mortgagee has released or relinquished any portion of the security to the prejudice of the subsequent alienees, in which case the mortgagee may be compelled to forego a pro portionate share of the debt see Mir Eusuff Ali Haji v. Panchanan Chatterjee 6 Ind. Cas. 842 : 15 C.W.N. 800 and Ponnusami Mudallar v. Srinivasa Naickan 31 M.k 333.

3. It is, no doubt, true that no case was cited in which such a direction was given in the decree at the instance of the mortgagee. All the cases cited by Mr. Rangachariar were cases in which to do justice to purchasers of the equity of redemption, the mortgagee was compelled to proceed first against certain parcels out of the mortgaged properties. But this is easily explainable; for no mortgagee is likely to fetter his discretion in the manner asked for by the mortgagee in this suit.

4. The only authority which we can find against the view taken above are certain observations of Harrington, J., in Surjtram Marwari v. Barhamdeo Persad 1 C.L.J. 337 but these observations were made in a case where the mortgagee, after releasing portions of the security, claimed to recover the whole of the debt from the remainder.

5. On the merits we are unable to say the direction to sell first the 5th item of property is wrong. It is after all for the mortgagee to judge what will be the most convenient and speedy mode of realising his debt. We must, therefore, dismiss the appeal with costs.


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