Rampini and Mookerjke, JJ.
1. This is an appeal from an order passed by the Subordinate Judge of Arrah in a case relating to the execution of a mortgage--decree. The decree was obtained on the 29th March 1888, and amended on the 11th August 1888.
2. The present is the fourth application for execution. It was made on the 25th April 1904. The execution of the decree is resisted by the successors in interest of Fakir Chand, a puisne mortgagee, who was made a party in the suit, in which the mortgagee Ram Newaz obtained his decree.
3. Execution is sought for against four properties, viz.--(1) Amrai Bikrampore, (2) Chamarpore, (3) Baruha No. 1273, and (4) Ekrasi and three other villages.
4. The Subordinate Judge has allowed execution to proceed against half of the first and against the second and fourth of these properties. He has directed Baruha No. 1273 to be sold, and the proceeds applied to the satisfaction both of the decree--holder's mortgage as well as of an existing mortgage debt of Fakir Chand, Fakir Chand's mortgage being the first to be satisfied.
5. Both the contesting parties appeal.
6. The principal appeal is that of the heirs of Fakir Chand, on whose behalf it is urged:
(1) That as the decree--holder has himself purchased two of the mortgaged properties, viz., Umedpore and Baruha No. 1272, he cannot execute his decree against the remaining four mortgaged properties without bringing the two properties purchased by him into hotchpot.
(2) So far as Amrai Bikrampore is concerned, the Subordinate Judge should have exempted from sale the whole and not half of it only.
(3) The Sub--Judge should have directed this property to be sold, subject to a charge on account of not merely Fakir Chand's zaripeshgi of Rs. 12,800, but also of certain other debts of the mortgagors, which Fakir Chand paid off after his purchase of this property.
(4) That Baruha No. 1273 was purchased by Fakir Chand in execution of a decree obtained by him on an earlier mortgage in a suit to which Bakshi Ram Newaz was a party; hence the present appellants have a good title to this property.
(5) That, if Baruha be sold as ordered by the Subordinate Judge, the present appellants are entitled to be reimbursed for other debts charged on this property, which Fakir Chand paid off, before the decree--holder is entitled to any share in the proceeds; and
(6) that as the decree--holder has, as mentioned above, purchased two of the mortgaged properties, the decretal amount now sought to be recovered should be apportioned between them, and the remaining properties, against which the decree is now sought to be executed.
7. On behalf of the decree--holder, it may be here mentioned, it is argued generally that, as this is the fourth application for execution, and the appellants have already resisted the execution of the decree and pressed their objections up to this Court, it is not open to them now to contest the execution of the decree. The grounds, which they now urge before us, are grounds which they either took or should have taken in the previous execution proceedings.
8. There is much force in this plea, for which authority is to be found in the case of Mungul Per shad Dichit v. Girija Kant Lahiri (1881) L.R. 8 I.A. 123 ; I.L.R. 8 Calc. 51, but we do not wish to dismiss the present appellant's appeal merely on this ground.
9. The first plea that the decree--holders cannot now execute their decree without bringing the two properties purchased by their predecessor into hotchpot would seem to be futile. The decree--holders are entitled to execute their decree against any of the mortgaged properties they please. There are other persons interested in the properties mortgaged by the deed in execution of the decree obtained on which the properties purchased by Bakshi Ram Newaz were sold. They have not been made parties, and so, if any equities arise between such other persons, the decree--holders and the present appellants, they must be tried out and disposed of in a separate litigation, and cannot properly be considered and decided in these execution proceedings. Our attention has, however, been called to two cases recently decided, viz., Harendra Kumar Guha v. Din Dayal Saha (1906) 4 C.L.J. 195 and Mahomed Taki v. Thomas, of which a short note appears in 4 Cal. L.J. 15n. Both these cases were execution cases, and in both it was held that apportionment, such as is prayed for in this case, could be granted. We are unable to agree with these decisions. We would point out that the cases on which they rely, viz., Bisheshur Dial v. Ram Sarup(1900) I.L.R. 22 All. 284, Nawab Azimutalikhan v. Jowahir Singh(1870) 13 Moo. I.A. 404 and Kali Prosonno Ghose v. Kamini Soonduri Chowdhrani(1878) I.L.R. 4 Calc. 475 are suits, so that they are no authorities for holding that apportionment can be made in execution. To hold that this could bo done is to hold that an executing Court can alter the terms of the original mortgage--decree sought to be executed. Then the contrary rule has been laid down in the case of Nafar Chunder Mundul v. Baikanto Nath Roy (1879) 4 C.L.R. 156, in which it has been said that, if by reason of it being necessary to sell the remaining share of the judgment--debtors any equity should arise between them and the appellant to have the decretal money distributed over the whole property mentioned by the decree, that equity must be enforced by an independent suit. In this conflict of authority we would be disposed to refer this point to a Full Bench, but we think it is not necessary to do so--(1) because, as already pointed out, the judgment--debtors should not be allowed to raise this objection at so late a stage of the execution proceedings; (2) because it is clear that no apportionment can take place in these proceedings. It has been already mentioned and it is conceded that the necessary parties to such apportionment proceedings are not parties to this execution, and further there is no evidence on which apportionment could be made. We think the onus lay on the judgment--debtors to prove part satisfaction of the decree in the way alleged by them, and no such evidence has been produced. No evidence has been excluded by the Lower Court, and there seems to be no reason why we should now remand this case to have such evidene recorded. We must accordingly disallow this plea. As to Amrai Bikrampore, Fakir Chand purchased this property at a sale held in execution of a decree obtained by the original decree--holder against a mortgagee named Lakhpati Koer and against Kishen Pershad, the latter of whom was held only personally liable. Hence the order of the Subordinate Judge as to this property would seem to be correct. The decree--holders cannot again sell the half of the property sold in execution of their predecessor's other mortgage--decree, but can only bring to sale the half sold in execution of the personal decree obtained against Kishen Pershad.
10. It has been argued that, as the decree holder in the course of the previous suit did not notify his mortgages of 1886, the present decree--holders are estopped from setting them up now. But there would seem to us to be no estoppel, as it is clear that the fact of the existence of mortgages of 1886 was known to both parties--to Fakir Chand as well as to Bakshi Ram Newaz.
11. There can be no doubt that half Fakir Chand's zaripeshgi is fairly chargeable to this property. But there is not sufficient evidence of the payment of the other charges on this property, which it is alleged were paid off by Fakir Chand after purchase of it. The learned pleader for the decree--holder says he has no objection, when Amrai Bikrampore is sold, to notice being given of the appellants' claims on this account over the property. We accordingly direct that this be done.
12. As for Baruha No. 1273, Fakir Chand purchased this property in execution of a mortgage--decree obtained by him on a prior mortgage dated 23rd September 1883. The present decree--holders were parties to that suit. It was ordered in the decree obtained in that suit that the property should be sold, subject to Bakshi Ram Newaz's lien. It is now urged that, as Bakshi Ram Newaz did not seek in that previous suit to redeem, he must be held to have waived his rights under his mortgages of 1886, and that they cannot be pressed now. But the answer to this would seem to be that there was no necessity for Bakshi Ram Newaz in that previous suit to ask to be permitted to redeem. The prayer in that suit was that the properties should be sold, subject to his rights, whatever they might be; so he did not need to claim to redeem a lien, which it was expressly proposed to keep alive. We shall further discuss the propriety of the Subordinate Judge's order as to Baruha in the appeal of the decree--holders.
13. The fifth ground of appeal was neither taken in the Court below nor in the memorandum of appeal to this Court. The appellants are accordingly not entitled to press it here.
14. The last ground of appeal would only seem to be practically a repetition of the first. We must disallow it, for the reasons already assigned.
15. The appeal of the judgment--debtors, No. 479 of 1904, is therefore dismissed with costs.