1. This appeal is directed against an order by which the Court below has refused execution of a mortgage decree made in favour of the appellant on the 22nd December 1905. It appears that the respondent executed a mortgage in favour of the appellant on the 27th. November 1900, in respect of specified shares in certain properties. The appellant subsequently, sued to enforce the security, and obtained the decree now under execution. Thereupon, on the 11th March 1907, one Berhamdeo Narain commenced an action for declaration that the properties covered by the mortgage belonged to a joint Mitakshara family of which he himself and the mortgagor were members, and that consequently the mortgagor had no authority to execute the mortgage in respect of any defined share of the property. He, therefore, prayed that the mortgage and the decree based thereon might be declared void and inoperative and asked for a permanent injunction to restrain execution thereof. The Court of first instance found that the properties belonged to a joint Mitakshara family as alleged, and declared that the mortgage and the decree for sale were null and void; but the Court also declared that the right, title and interest of the mortgagor might be sold in execution of the mortgage-decree. The decree-holder defendant then appealed to this Court and the decision on appeal is to be found reported in Mohunt Ram Sundar Das v. Berhamdeo Narain 2 Ind. Cas. 986 : 14 C.W.N. 552. The result of the appeal was to modify the decree of the original Court. It was held that the mortgage was void only in so far as it affected the specific share of the mortgagor, and that the declaration of the Court of first instance that the right, title and interest of the mortgagor must be sold in execution of the mortgage decree could not be maintained; it was further declared that the properties were to be held by the mortgagor and his co-sharer, the plaintiff, in certain specified shares, and that the share of the mortgagor was to be held subject to the lien of the mortgagee for the sum advanced on the mortgage with interest due thereunder. This decree was made on the 8th July 1909. On the 24th November following, the decree-holder prayed for sale of the specified share of the mortgagor in execution of the decree obtained by him on the 22nd December 1905. The judgment-debtor thereupon objected that the decree was incapable of execution; that the effect of the decision of this Court in the suit mentioned was to invalidate the decree, and that the only remedy of the decree-holder was to institute a fresh suit to enforce, the lien declared by the decree of this Court. The Subordinate Judge has held that this objection is well-founded, and in this view, he has dismissed the application for execution. The decree-holder has now appealed to this Court, and on his behalf it has been contended, that the decree is capable of execution, and may be enforced by sale of the specific shares to which the title of the mortgagor was declared by the decree of this Court. The answer to the question raised must depend upon a construction of the decision of this Court in the suit commenced by the co-sharer of the mortgagor, and upon a consideration of the principles applicable to cases of this description.
2. It cannot be disputed that the difficulty in the case before us is attributable, in part at least to the circumstance that when the decision of the original Court in the regular suit was modified by this Court, a self-contained decree was not prepared; if this course had been pursued, no question could have arisen as to the extent to which the decree of the original Court was effected by the decision on appeal. But there is, in our opinion, no real difficulty in the solution of that question, if we bear in mind certain well-recognised principles, though it may be conceded that none of the judicial decisions Upon which reliance has been placed by both sides, and to which we shall presently refer, is directly in point, In the case of Mahabeer Persad v. Ramyad Singh 12 B.L.R. 90 : 20 W.R. 192 the contest arose between a co-sharer of the mortgagor himself a member of a joint Mitakshara family, and the purchaser at the sale in execution of the mortgage-decree. In the case of Jamuna Pershad v. Ganga Parshad 19 C. 401 the contest was between the purchaser at the sale in execution of a mortgage-decree based on a mortgage created by a member of a joint Mitakshara family and persons who claimed under the mortgagor. In the case of Banwari Lal v. Sheo Sanker Misser 1 Ind. Cas. 670 : 13 C.W.N. 815 the contest was between a purchaser at a private sale from a member of a joint Mitakshara family and the co-sharer of the transferor. In each of these cases it was ruled that the purchaser was liable to have the property taken away from him, though he was entitled to a charge upon the share of the transferor defined and specified in the decree of the Court: in other words, the Court refused restitution of the interest transferred except on condition that such interest was forthwith defined and made at once available for re-payment of the price received by the transferor. This view was substantially approved by their Lordships of the Judicial Committee in Madho Parshad v. Mehrban Singh 18 C. 157 : 17 I.A. 194 although as in that case the suit for cancellation of the conveyance by the co-sharer of the transferor was brought after the death of the latter, that is, after his interest in the joint property had passed by survivorship to the co-parcener, the Court held that he was not effected by any equity of the kind described. In the case before us, however, the suit for declaration of the invalidity of the mortgage and the decree founded thereon was commenced before the decree could be executed and the mortgaged premises brought to sale. On the analogy of the principle deducible from the cases mentioned, the Court, therefore, defined the shares of the mortgagor in the properties mortgaged, and declared that the mortgagor was to hold them subject to the lien of the mortgagee for the re-payment of the mortgage consideration. It is worthy of note that the co-parcener of the mortgagor did not ask for any opportunity to redeem the mortgage, and consequently no decree for redemption was made, as was done in the cases of Jamuna Parsad v. Ganga Parsad 19 C. 401 and Banwari Lal v. Sheo Sanker 1 Ind. Cas. 670 : 13 C.W.N. 815. The result was that the co-sharer who might have asked for leave to redeem, lost his opportunity. The questions in controversy, therefore, were necessarily restricted in scope and could be deemed to arise only as between the mortgagee and the mortgagor. The judgment-debtor has suggested that the decree in the mortgage suit has been rendered inoperative in its entirety and that, in substance, there is no decree capable of enforcement, and the learned Vakil on his behalf has in fact contended that the decree-holder must be driven to a regular suit, although if a suit were now brought to enforce the lien which the mortgagee possesses upon the share of the mortgagor as specified in the decree of this Court, there would be no possible defence to the action. In support of this objection, reference has been made to Rule 14 of Order XXXIV of the Civil Procedure Code of 1908. That section provides that where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale, otherwise than by instituting a suit for sale in enforcement of the mortgage. We have been invited to apply this rule to the case before us, read with Section 100 of the Transfer of Property Act and Rule 15 of Order XXXIV of the Code of 1908. In our opinion, these provisions do not affect the position of the appellant. The decree obtained by him on the 22nd December 1905 entitles him to realise from the respondent a certain sum of money: the decree further directs that upon failure of the defendant to pay the specified sum within the prescribed time, the mortgaged property is to be sold by auction. The effect of the decree of this Court in the regular suit was, in substance, to leave untouched the decree in so far as it made the mortgagor-defendant responsible for payment of the specified amount. The true result of the decree of this Court was to declare that the mortgagee could realise out of the share of the mortgagor therein determined, and specified his judgment-debt. It would manifestly be an idle formality to compel the decree-holder to have recourse to another suit in which the decree for money would be re-produced with a direction added that, in the event of non-payment, the specified share of the mortgagor in the mortgaged premises should be sold. The reason which underlies Rule 14 of Order XXXIV of the Code, was explained by this Court in the case of Asutosh Sikdar v. Behary Lal Kirtayani 35 C. 61 at p. 75 : 11 C.W.N. 1011 : 6 C.L.J. 320. The policy of the Legislature was to prevent the evil results which followed from sales of mortgaged properties by mortgagees in execution of money-decrees; these consequences are stated to have been three-fold, namely, first, the mortgagor who would ordinarily be entitled to the facilities afforded in a mortgage-suit for re-payment of the mortgage-debt is summarily deprived of the equity of redemption; secondly, a purchaser would hardly pay full value for the equity of redemption, as he would take subject to the unascertained claim of the mortgagee, with the result that the mortgagee himself would purchase the property for a merely nominal sum; and thirdly, if the purchaser took the property without notice of the mortgage, and was subsequently called upon to discharge the incumbrance, there might be great hardship upon him, unless he was afforded the benefit of the doctrine of estoppel. [See Mahabir Singh v. Saira Bibi 37 A. 520 and Mahamud v. Shib Sahaya 21 A. 309 : Anglo Indian Codes by Dr. Whitley Stokes, Volume 1, page 734]. It is obvious that none of the evil consequences suggested could possibly happen in the case before us, because here the property would be sold at the instance of the decree-holder forced from his lien. The reasonable view to take, therefore, of the combined effect of the decree in the mortgage suit and the decree of this Court in the title-suit is to hold that the decree-holder is entitled in execution of his decree to bring to sale the specific share of the judgment-debtor for realisation of the judgment-debt. The learned Subordinate Judge appears to have held that the consequence of such view would be that the co-parcener will not have any opportunity to redeem. The answer is that the coparcener had ample opportunity to do so and he never expressed any desire to redeem see the observations of Maclean, C.J., in Lala Suraj Prasad v. Golap Chand 28 C. 517. It is further difficult to appreciate how such co-parcener could be appropriately joined as a party to a suit to enforce the lien in favour of the appellant against the specific share now owned by the respondent. Hence, the conclusion follows that the decree held by the appellant must be executed against the shares of the properties defined by the decree of this Court in the regular suit.
3. The result, therefore, is that the appeal is decreed, the order of the Subordinate Judge reversed, and execution allowed to proceed. The appellant is entitled to his costs both here and in the Court below. We assess the hearing fee in this Court at two gold mohurs.
4. It is conceded that this judgment will govern the other appeal, which will consequently be allowed with similar costs in both the Courts.