1. This is an appeal by the judgment-debtors against an order of the Subordinate Judge dismissing their objection and ordering execution to proceed in execution proceedings on a mortgage decree.
2. On the 23rd August 1894 fourteen persons took a patni lease in the names of four of their number paying a salami of Rs. 39,000. Partly for the purpose of raising the necessary funds money had been borrowed by different combinations of these persons. In one of these transactions a mortgage bond for Rs. 12,000 was executed on the 17th August 1894 by ten of the fourteen persons, though it was expressly stated in the mortgage bond that two of the ten had no interest in the property mortgaged.
3. On the 29th August 1894 the fourteen persons executed an ekrarnama, in which it was stated that the parties wished to settle their shares and make arrangements for the re-payment of the debts so as to avoid disputes in future. The interests in the patni allocated to individuals were sat out in a schedule and the individuals were arranged in two groups; one group of six having 5 1/2 annas and the other of eight having 10 1/2 annas in the patni. The ehrarnama set out in what proportion the debts were to be borne by the two groups. In short, the 5 1/2 anna co sharers took the liability for Rs. 15,500 and the 10 1/2 annas co sharers the liability for the rest of the debts amounting to Rs. 30,000. The liability for the Rs. 12,000 borrowed on the mortgage was divided Rs. 4,000 to the 5 1/2 annas and Rs. 8,000 to the 10 1/2 annas co-sharers.
4. The position with reference to the mortgage was now somewhat peculiar. Although all fourteen persons had agreed among themselves to be liable for the debt, the individuals in each group being liable for the amount due from the group in proportion to their shares in the patni, only eight persons were actually interested in the mortgaged property. These eight had 9 1/4 annas in the patni; two others, who joined in the mortgage without having any interest in the mortgaged property, had 4 1/2 annas in the patni; the other four who did not join in the mortgage had 2 1/4 annas in the patni.
5. Various sums were subsequently paid by five of the persons and the payments were endorsed on the mortgage bond, but though it is stated on behalf of the appellants that they claim to have paid even more than their shares according to the ekrarnama, the figures have not been worked out so as to enable us to say whether that claim is justified or not.
6. In course of time the mortgagees sued on their mortgage and on the 12th March 1908 got a decree, the amount then due being upwards of Rs. 20,000. On the 7th February 1912 mortgagees sold their rights for Rs. 18,000 to Haladhar, one of the original fourteen persons, and the representatives of Rajkishore, another of the original fourteen. Haladhar and Rajkishore were two of the mortgagors, Rajkishor's interest in the patni being in annas out of the 5 1/2 anna group and Haladhar's 2 annas oat of the 10 1/2 annas group.
7. The present application for execution was made by the purchasers of the mortgagee's interest on the 31st March 1914. Objections to the execution were made on behalf of the present appellants, who represent Jugalkishor, who had an one-anna share in the patni out of the 5 1/2 annas, and Krishna, Mangal, Gangadhar and Jagabandhu, who had 3 annas out of the 10 1/2 annas.
8. The objection petitions contained a number of objections, but those urged before the Subordinate Judge appear to have been the following: (1) limitation: (2) that the Rs, 18,000 had been paid on behalf of all the debtors and accepted in full satisfaction of the decree: (3) that under Order XXI, Rule 16, of the Code of Civil Procedure one of the judgment-debtors could not execute the purchased decree against the other judgment-debtors: (4) that the equities existing between the parties by reason of the ekrarnama should be worked out in the execution proceeding and not by separate suit: (5) that as the transfer included transfer of the interest of a minor made by the certificated guardian without the permission of the District Judge the transfer was inoperative. The Subordinate Judge decided against all these contentions.
9. The points now urged on behalf of appellants are: (1) that the transfer of the minor's share is invalid, therefore, the transferees cannot execute the decree as a whole, and as the extent of the minor's interest is unknown the decree is incapable of execution: (2) that the rights and liabilities of the parties can be worked out in the execution proceedings: (3) that the present decree-holders being interested in a portion of the equity of redemption there ought to be an apportionment of the debt between the property held by them and the property held by other judgment-debtors: (4) that the purchase by some of the debtors was really a discharge of the debt as contemplated by the ekrarnama.
10. The first point taken depends on the effect of the transfer of a minor's interest by a certificated guardian without the leave of the District Judge. Section 30 of Act VIII of 1890 provides that such a transfer is voidable, not void, at the instance of any other person, i.e., in addition to the minor, affected by the transfer. In my opinion the objectors cannot question the validity of the transfer. They may be affected by action taken by the transferee subsequently to the transfer but they are not affected by the transfer itself.
11. The fourth point would appear to have been presented to the Subordinate Judge in a somewhat different light to that in which it has been put before us, viz., on the footing that the objectors had contributed to the purchase money, the purchase being made on behalf of all the judgment-debtors. We have not been referred to any portion of the oral evidence, and the ekrarnama on which reliance was placed to support the argument does not contain any provision as to the effect of a purchase of the mortgage by some of the debtors, though there is a provision that a co-sharer who pays the debt of another co-sharer in anticipation of a suit will obtain the share in the patni of the defaulting co-sharer. This clause is evidently not sufficient to establish the contention put forward, assuming for the sake of argument that the ekrarnama may be referred to work out the equities between the parties.
12. A somewhat similar point whish might perhaps have been advanced, though in fact it was not, is that the purchase was in substance, though not in form, a redempation of the mortgage and that the right-of the transferees were those possessed by one of several mortgagors who redeems the mortgage. The point in essence differs from that based on Order XXI, Rule 16, which was taken before the Subordinate Judge, and 'which the learned Pleader for the appellants expressly abandoned before us. But there is authority in Laldhari Singh v. Manager Bhabatpura Estate 12 Ind. Cas. 70 : 16 C. W. N. 132 : 14 C. L. J. 639 that a judgment-debtor assignee of a mortgage decree can execute it by putting up the mortgaged property to sale.
13. For the third point the learned Pleader for the appellants admits that he can show no authority. His argument is that this is the converse of the case contemplated by Section 60 of the Transfer of Property Act and that as a mortgagor is entitled to redeem his own share when the mortgagee has acquired the share of a mortgagor, the same Rule applies when a mortgagor has acquired the interest of the mortgagee. He argues that the Rule is founded on the union in the same person of the interest of the mortgagee and of one or more of the mortgagors, and as it applies when the mortgagee acquires the interest of a mortgagor it ought to apply also in the converse case. But the Rule is not founded on the union of the two interests in one person, but on a result which follows that union in the case where the mortgagee purchases the interest of a mortgagor but not in the converse case, namely, that the mortgagee has by his purchase split up his security. The purchase by a mortgagor of the mortgagee's interest does not entitle the other mortgagors to apportionment of their debt.
14. There remains the question whether the equities between the parties can be worked out in the execution proceedings or only by separate suit. What the appellants are in effect claiming is that they have individually paid off the shares of the debt due from them in accordance with the terms of the ekrarnama and that their share in the mortgaged property ought to be released from sale, or that they should be made liable individually only for such amounts by which their payments fall short of the amounts due in proportion to their shares in the patni. This obviously cannot be done. I have already pointed out that by the ekrarnama all fourteen persons divided between themselves the responsibility for the mortgage debt, but that the persons interested in the mortgaged property only had 9 1/4 annas in the patni. Supposing every one of the persons interested in the mortgaged property had paid up his share of the mortgage debt as allocated in the ekrarnama, a very large portion of the mortgage debt would still remain unsatisfied, and for that portion of the debt the mortgaged property as a whole and not the shares of the individual members must remain the security; by no process of reasoning could the balance of the debt be thrown on the share rather than on another. And if it is sought to bring all the debts referred to in the ekrarnama into the account, that obviously cannot be done in this execution proceeding as it would bring in persons who were not parties to the suit. I am, therefore, of opinion that the appeal should be dismissed.
15. There is, however, an order which we can make and which I think we ought to make, concerned as we are with seeing that formalities of procedure should not be allowed to obscure substantial justice between the parties.
16. As already mentioned, various payments were made on the mortgage; one was of Rs. 2,057 made in respect of Raj Kishor's share of the debt on the 6th Aswin 1302. Nothing has been paid in respect of what is admittedly Haladhar's share of the debt. His original share would be 2 annas out of 10 1/2 annas, i.e., 4/21 of Rs. 8,000. By now it will have amounted to a very much larger sum. Raj Kishor by his payment of Rs. 2,057 may or may not have paid the full amount due for his share, which was originally 5/22 of Rs. 4,000. A large portion of the judgment-debt is, therefore, due from the decree-holders themselves. They cannot be allowed to sell the property for the whole debt, which is largerly swollen because they have failed to carry out their own undertakings. It must be taken that they have paid to themselves the amount due from themselves. A calculation must be made of the amount due in respect of the shares of Raj Kisbor and Haladhar on the footing above indicated, and the amounts so found must be deducted from the sum for which execution is levied, satisfaction for those amounts being entered.
17. The parties to this appeal will bear their own costs.
18. I agree.