Dwarampudi Basivireddi by mother and guardian Manikyam vs Gadi Kamaraju and Others

Madhavan Nair, J.—The point for determination in this Civil Miscellaneous Second Appeal is whether the decree-holder in O.S. No. 296

of 1924 is entitled to take the amount in deposit in preference to the decree-holder in O.S. No. 410 of 1918.

The decree-holder in O.S. No. 410 is the appellant before this Court. In O.S. No. 296, the 1st respondent obtained a mortgage decree. The

subject-matter of the mortgage was Immovable property and the crops that may grow on it. The decree stated generally that the decree-holder

may realise his decree by sale of the mortgage property. To that decree the present appellant was a party as he also held a mortgage over the

same property. He was the 3rd defendant in the suit. Before the execution of the mortgage decree the present appellant obtained a money decree

and brought the standing crops on the property to sale. The mortgagee decree-holder then put in an application stating that the amount brought into

Court should be utilised towards the discharge of his decree. His prayer was that the deposit amount may be transferred to his mortgage suit and

that meanwhile the said amount may be attached and prevented from being paid to others.

It is undoubted law that a mortgage of moveable property is valid, and a decree can be passed in enforcement of that mortgage. The learned

District Munsif held that inasmuch as the mortgage was of moveable property the decree-holder''s right was not to take steps to sell it, but to

enforce the lien which alone he has on the moveable property by obtaining a decree for money in a subsequent suit and as the procedure which the

decree-holder has resorted to was unwarranted in law, he dismissed his application. In appeal the learned Subordinate Judge set aside the order of

the District Munsif and ordered execution to proceed.

In this second appeal Mr. Lakshmanna has again emphasised the point on which the decision of the District Munsif is based, i.e., his contention

is that without obtaining a separate personal decree no execution can be proceeded with against the moveable property. What he states is that a

separate suit should be instituted and it is only after obtaining a decree for money that any execution can be taken. In my opinion this contention

cannot be accepted. Once a decree for sale of the property has been passed, the distinction that part of the mortgage property is moveable and

part is Immovable is altogether effaced. There is a decree for sale of the mortgage property including the moveable as well as the Immovable

property and as the decree gives the decree-holder the right to sell, I think without resorting to a separate suit the mortgage property can be

brought to sale. Otherwise the position will lead to this complication. Having once obtained a decree for the sale of the property moveable though

it may be he cannot execute that decree unless he obtains another decree in respect of the same property. A suit for the same relief in those

circumstances cannot lie.

There is no direct authority on this point in any decision of the High Court but a decision in Mahamaya Debi v. Haridas Haldar ILR (1914) 42

Cal. 455. lends support to the conclusion arrived at by the Appellate Court. There, there was a mortgage of intangible property and a decree for

foreclosure was passed. The learned Judges held that such a. decree could be passed and executed. Relying on that decision the learned

commentator, Sir D.F. Mulla, in his Civil Procedure Code, says: ""A mortgagee of chattels is entitled to foreclosure quite as much as a mortgagee

of Immovable property Mulla''s Civil Procedure Code, 9th Ed., p. 911. If a mortgagee of chattels is entitled to foreclosure quite as much as a

mortgagee of Immovable property, I do not see any reason why a mortgagee of moveable property is not entitled to right of sale quite as much as

a mortgagee of Immovable property.

In this case there is a further difficulty. The present appellant was a party to the decree in the mortgage suit. Even assuming as is argued on his

behalf that there was only a lien declared by the decree as regards the moveable property, still being a party to the decree, his rights can only be

subject to this lien and he cannot be heard now to say that his rights should be recognised first; and that the rights of the decree-holder in the

mortgage suit should be recognised only later.

In these circumstances I think the order of the Lower Court is right and this Civil Miscellaneous Second Appeal is dismissed with costs.