Budhavarapu Suryanarayana vs Pyda Suryanarayanamurthy

Pandrang Row, J.—This is an appeal from the decree of the Additional Subordinate Judge, dated November 16, 1932, in appeal from the

order of the District Munsif of Rama-chandrapuram, dated July 12, 1932, in a petition by the prior mortgagee (6th defendant in O.S. No. 127 of

1928), praying that the properties to be sold in execution of the decree therein may be sold free of his prior mortgages, under the provisions of

Order XXXIV, Rules 12 and 13. The District Munsif was apparently of opinion that the word ''sale'' used in Rule 12, Order XXXIV, cannot

mean a sale in execution but can only refer to a sale ""embodied in the decree itself."" He therefore held that Rule 12 did not apply and that the prior

mortgagee had no right to apply to the Court under that rule. The petition was therefore dismissed. On appeal, however, the Subordinate Judge

found that Rule 12, Order XXXIV, did apply, and that the prayer of the prior mortgagee should have been allowed by the lower Court. The

appeal was accordingly allowed and the petition of the prior mortgagee was granted. The present appeal is by the plaintiff in the suit.

The only question for determination in this second appeal is whether the 6th defendant, the prior mortgagee, was entitled to apply under Order

XXXIV, Rule 12, Civil Procedure Code. The decree in the suit, in question was a compromise decree, and that decree itself provided that the

properties should be liable to be sold in execution, if a certain amount that was to be paid by defendant No. 1 to the plaintiff was not paid within a

certain date. The payment was not made and the property was brought to sale by the plaintiff in execution of the compromise decree. It was at this

stage that the 6th defendant, who is the prior mortgagee, applied under Order XXXVI, Rule 12, Civil Procedure Code. The appellant''s Advocate

would have it that an application under this rule can be made only by the plaintiff decree-holder, and that it is not open to anybody else to make

such an application. The language of Rule 12, however, does not support this extreme contention. It merely confers upon the Court the power of

directing a sale free from the prior mortgage subject to the conditions prescribed in that rule, namely, that the property must be one of which the

sale is directed under Order XXXIV and there must be the consent of the prior mortgagee. When these conditions are satisfied, as they have been

in this case, the Court has full power in its discretion to direct the sale free from the prior mortgage. The rule does not require that the consent of

the plaintiff is necessary or of any other person besides the prior mortgagee.

The rule does not, moreover, say that the Court can make such an order only on the application of the plaintiff or any specified person. The rule

confers a general power on the Court which the Court can exercise so long as the conditions are satisfied on the application of anybody or even of

its own motion. I am therefore of opinion that there is no substance in the contention of the appellant and I find that the learned Subordinate Judge

is right in coming to the conclusion that this was a case in which the Executing Court had the power to grant the prayer in the petition. As regards

the question whether the discretion was properly exercised by the Appellate Court in granting the prayer, I see no reason to believe that the

discretion was not properly exercised in this particular case. I have not been shown that it was unreasonable in the circumstances to have exercised

this discretion. The considerations that have been brought to my notice are considerations which are common to all cases of this description and

not peculiar to this particular case. In any case, I am not prepared in second appeal to interfere with the discretion exercised by the lower

Appellate Court.

The appeal, therefore, fails and is dismissed with costs.