Babu Jatadhari Singh vs Babu Baldeo Lal

B.K. Mullick, J.—This second appeal arises out of the execution of a mortgage-decree in respect of seven properties. In the first execution fell the seven properties were put up to sale. There were no bidders for items Nos. 1, 2, 3 and 4. Property No. 5 was sold and fetched a sum sufficient to discharge the decree, but on the objection of the judgment-debtors the sale was set aside. In the second execution only properties Nos. 4 and 5 were put up to sale. There were no bidders again for property No. 4 and property No. 5 alone was sold but that Bale, too, was set aside.

In the execution with which we are dealing, viz., the third execution, properties Nos. 4 and 5 were again put up to sale. There were no bidders for property No. 4 and property No. 5 was knocked down for a sum of Rs. 4,400.

The judgment-debtor made an application to set aside the sale on the ground of material irregularity and inadequacy of price and also on the ground that no notice of the settlement of the sale proclamation was served upon him. But it has been found on appeal by the District Judge that there was no irregularity in the conduct of the sale and the application was dismissed.

The judgment is conclusive on this point and the learned Vakil for the appellants admits that no second appeal lies so far as the objection on the ground of material irregularity is concerned.

But he contends that it was the duty of the executing Court to sell the properties in the order given in the decree and that it was not open to the Court to sell property No. 5 before selling properties Nos. 1, 2, 3 and 4. It is contended that this is a question relating to the execution and satisfaction of a decree arising between the judgment debtor and the decree-bolder u/s 47 of the Civil Procedure Code, and that, therefore, a second appeal lies against the decision in this matter.

Now, the question is whether a mortgagee decree-holder has a light to enforce his mortgage charge by the sale of any property over which his lien extends. The authorities in the Calcutta High Court are all unanimous on this point, and hold that the execution Court ought not ordinarily to fetter the discretion of the decree-holder to put up to sale whichever property he wishes first to sell. See Musammat Hoolas Kooeree v. Musammat Bibee Sufeehun 8 W.R. 379, Mohunt Kishun Dayal Gir v. Sattar Buksh Khan 11 C.W.N. xxvii (27), Khub Lal Singh v. Navabi Hurmuji Begum 9 C.W.N. cxcviii (198), Amir Chand Vs. Bukshi Sheo Pershad Singh, and The Midnapur Zemindary Company Limited Vs. Abinash Chundra Mitra and Others, . So also was it held by their Lordships of the Allahabad High Court in Bhikhari Das v. Dalip Singh 17 A. 434 : A.W.N. (1895) 83 : 8 Ind. Dec. (N.S.) 601.

Under Order XXXIV, rule 4, Civil Procedure Code, it is the duty of the Court in making a mortgage-decree to order that the mortgaged property or a sufficient part thereof be sold. This, no doubt, gives a right to the Court making the decree to declare what portion of the mortgaged properties shall first he sold; but that discretion is not to be arbitrarily exercised and is subject to the general principle that the Court cannot prejudice the rights of the mortgagee if he has not himself done any act which prejudices the rights of those having equities against the mortgagor. It is to give effect to this principle that the provisions relating to marshalling and contribution have been enacted.

In the absence of a direction in the decree to the contrary, it would seem that this discretion vests in the execution Court also.

The learned Vakil for the appellants relies upon the following cases: Syed Mahomed Siddik Vs. Ram Lal Mandar and Others, , Krishna Ayyar and Others Vs. Muthukumarsawmiya Pillai and Others, , Appaya v. Rangayya 31 M. 419 : 3 M.L.T. 287 (F.B.) : 18 M.L.J. 229 and Subraya Venkatesh Buddu Shetti Vs. Ganpa Narayan Naik, .

Some of these cases relate to contribution and do not apply to the facts of the case before us; but even in those cases it has been recognized that as long as the right of contribution as between the mortgagor and the purchaser is unaffected by any act of the mortgagee, his right to be paid the whole of the debt out of any portion of the mortgaged property he wishes to comprise in his suit cannot be questioned.

The same principle applies to the right to marshal.

Therefore, unless there are any equities requiring marshalling and contribution, the decree-holder has the fullest right to bring to sale whichever property he wishes first to sell. Here there are no such equities, and, therefore, the Court ought not to fetter the will of the decree-holder. But from the proceedings it would seem that the Court was fully aware of the fact that it was selling a property out of the order in which it appeared in the decree of the trial Court, and that the Court did not choose to fetter the decree-holder''s discretion. The learned Vakil for the appellants contends that the Court did not direct its mind to this question, and that the judgment-debtors had no notice of the service of the sale proclamation. This ground was taken before the execution Court and was found against the judgment-debtors. It was not pressed before the District Judge, and the law does not allow any further appeal on this point. Therefore, we must take it that the sale proclamation was served in accordance with law.

Then it is contended that the notice for settling the sale proclamation had not been served upon the appellants. That, too, has been found against them and the judgment of the lower Court is final on this point.

Therefore, we must hold that although the Court had a discretion to settle the order in which the properties were to be sold, the Court has in this case exercised this discretion rightly and that we ought not to interfere.

In this view of the case the appeal must fail and be dismissed with costs.

Jwala Prasad, J.

It appears to me that the question whether the decree-holder was entitled to sell the mortgaged property item No. 5 out of its order in the mortgage decree, does not properly arise in this appeal. The decree-holder in earlier execution made strenuous efforts to sell the properties in the order in which they are described in the decree, but when the properties were put up to sale, Nos. 1, 2 and 3 fetched no value. There was, therefore, no remedy left to the decree-holder but to proceed against properties Nos. 4 and 5. In the subsequent execution property No. 4 also fetched no value, and in the present execution the decree-holder, therefore, has proceeded against property No. 5. The decree-holder, while applying for the sale of item No. 5, clearly stated that there was no bid for the other properties at the previous sales and prayed that the property item No. 5 be sold. This was allowed by the Court and hence the property was sold under the direction of the Court. It would thus appear that the order of the mortgaged properties mentioned in the decree has not been at all disturbed in execution by the decree-holder. As the question has arisen, I must say that in the beginning I had entertained some doubt as to the right of the decree-holder to change the order of the properties described in the mortgage bond or the decree. After carefully considering the authorities on the point I have to a great extent, if not altogether, modified my view. The right to sell the properties arises out of a contract between a mortgagor and a mortgagee as embodied in the mortgage-deed. If that deed specifically says that the properties, on default of the payment of the mortgage-money, would be sold in a particular order, I do not think it would be open to the decree-holder to change that order in seeking to enforce the repayment of his money. If, however, there is no specific mention of the order in which the properties are to be proceeded against for the enforcement of the loan, the hands of the decree-holder would not be fettered. The mortgage decree generally follows the mortgage bond in describing the order in which the properties should be sold, unless the Court for certain reasons directs that certain properties be sold over the others. In the present case it has not been shown that there was any agreement between the parties that the properties mortgaged were to be sold in the order in which, as a matter of course, they have been mentioned in the mortgage bond. There is also no particular direction in the decree as to the order in which the properties are to be sold. The right to select the properties for the enforcement of his loan would, therefore, in the first instance be in the decree-holder. For good reasons, the Court has the undoubted discretion to direct that the discretion of the decree-holder should not prevail, and that the properties should be sold in certain other manner. It was open to the judgment debtors or any other person affected by the sale to show that the sale of property item No. 5 should have been postponed until the other properties in the mortgage decree had been sold. No attempt has been made in this case to show that the right of any one has, as a matter of fact, been prejudiced by selling property No. 5 in the way in which it has been done in the present case, I, therefore, agree that the appeal should be dismissed.