1. The judgment-debtor 1 Murari Ram Das is the appellant in this case. It appears that the decree-holder obtained a final mortgage decree against the appellant on 5th December 1935. This decree was put into execution by the decree-holder on 3rd December 1936 in Execution Case No. 126 of 1936. These particular execution proceedings were dismissed for default on 7th April 1937, but a further application for execution was filed on 27th October 1937, and in his application the decree-holder asked that execution might be taken only in respect of some of the mortgaged properties which were covered by his decree. On an objection filed on behalf of the appellant the first Court directed that all the mortgaged properties should be included in the sale proclamation. An appeal was taken against this order 'to the lower Appellate Court and the learned Subordinate Judge directed that execution should proceed in respect of the properties mentioned in the decree-holder's application and dismissed the application filed under Section 47, Civil P.C., on behalf of the judgment-debtor.
2. The main point urged by the learned advocate for the appellant in this case is that the order of the first Court should be restored as it is the business of the executing Court alone to decide the order in which properties covered by a mortgage decree should be put up to sale. In support of his contention he relies upon a decision of this Court in Mamohed Saddik v. Saudagar Mian Lahari (1911) 15 C.W.N. 80. In that case the learned Judges did not accept the view taken in a previous decision of this Court in Amir Chand v. Bukshi Sheo Pershad Singh (1907) 34 Cal. 13 to the effect that 'the decree-holders are entitled to execute their decree against any of the mortgaged properties they please.' It was, however, pointed out by Mukherji J. in Nobin Chandra v. Debendra Sen : AIR1927Cal522 that the learned Judges in Mahomed Saddik v. Saudagar Mian Lahari (1911) 15 C.W.N. 80 adopted a somewhat extreme view. His Lordship in Nobin Chandra v. Debendra Sen : AIR1927Cal522 was of opinion that the law had been correctly stated by the Patna High Court in Khirodhar Singh v. Gajadhar Lal (1925) 12 A.I.R. Pat. 484 in which it had been held on a consideration of a large number of authorities that the executing Court ought not ordinarily to fetter the discretion of the mortgagee decree-holder to put to sale whatever property he wished to sell first. I am further of opinion that the view which has been adopted by the lower Appellate Court also finds support in the language of Order 34, Rule 5(3) Civil P.C., which states:
Where payment in accordance with Sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold and that the proceeds of the sale be dealt with in the manner provided in sub-rule (1) of Rule 4.
3. To my mind the intention of the Legislature by this provision of the law was to confer a right upon the mortgagee ordinarily to realize his security by bringing only a part of the mortgaged property to sale, provided he was satisfied that the sale of a portion of such property would be sufficient for the purpose of enabling him to realize his dues. This right however as pointed out by Mukherji J. would be subject to certain exceptions in the case of a bona fide purchaser of the mortgaged properties with which we are not concerned in the present case. Having regard to the considerations mentioned above I am of opinion that the decision of the lower Appellate Court is correct. It is, therefore, affirmed and this appeal is dismissed with costs. The hearing fee is assessed at two gold mohurs.