Kuppusami Iyengar and Another vs Subbaraya Rowtha Minda Nainar and Another

Abdur Rahim, J.

Appeal Against Order No. 120 of 1910.

I think the order of the Subordinate Judge is wrong in so far as it disallows the petition of the appellants who are decree-holders in Original Suit

No. 62 of 1901 to proceed against the properties not mentioned in the sale-certificate dated the 16th December 1904 but included in the decree

obtained by the Nadars, the judgment-debtors of the appellant, against the respondents. I have assumed that the properties now sought to be

proceeded against are not covered by the sale-certificate in question because there is no evidence on record to show that they are, but the decrees

obtained by the appellants against the Nadars entitle them to recover the judgment-debt from their persons and other properties. The properties in

dispute are undisputedly included in the mortgage-decrees of the Nadars and so all their rights in those properties are liable to be sold if the decree

obtained by the appellants is not satisfied by the sale of the Nadar''s interest in the properties hypothecated to them and ordered to be sold under

the appellant''s decree. Order XXT, Rule 53 of the CPC which governs this case lays down that the holder of a decree sought to be executed by

the attachment of another decree for sale in enforcement of a mortgage or charge shall be deemed to be the representative of the holder of the

attached decree and, therefore, to be entitled to execute such attached decree in any manner lawful for the holder thereof. It was the same

Subordinate Court of Kumbaconam that passed the decree obtained by the Nadars against the respondents and the decree obtained by the

appellants against the Nadars. Then, all that would be necessary for the attachment of the Nadars'' decrees, so fat as the properties in question are

concerned, is to pass an order to that effect and then the appellant can proceed to execute the mortgage decrees of the Nadars. The appeal is,

therefore, allowed with costs here and in the Court below and the Subordinate Court will be asked to dispose of the appellant''s application for

execution according to law.

Appeal Against Order Nos. 121 and 122 of 1910.

These appeals follow Appeal No. 120of 1910.

Appeal Against Order Nos. 120, 121 and 122 of 1910.

Spencer, J.

The decree-holders in Original Suits Nos. 33 and 43 of 1893 and 35 of 1895 who may for shortness be termed the ''Nadars'' mortgaged their

interest to the appellants, who may be called the ''Chetties.''

The Chetties brought a suit, Original Suit No. 62 of 1901, for sale upon their mortgage and obtained a decree. In execution of this decree there

was a Court auction at which the Chetties became the purchasers of the hypothecation rights of the Nadars in certain Immovable properties

described in the sale-certificate in these proceedings.

The Chetties now seek to have sold by the Court certain other lands not specified in the sale-certificate but covered by the Nadars'' decrees.

The judgment-debtors in the Nadars'' decrees who are respondents in these appeals object that the Chetties are not entitled to exercise against

lands not included in their sale-certificate powers which they have by virtue only of their purchase.

Out of the contentions of the parties two questions arise, viz., (1) whether the Chetties by their right as mortgagees are entitled, so long as their

decree remains unsatisfied, to step into the shoes of the Nadars and execute their decrees against the respondents up to the limit of the Nadars''

interest in the mortgaged properties, and (2) whether the sale-certificate covers the lands now sought to be proceeded against although by some

mistake they may have not been specifically mentioned.

On the second point the appellants rely on the well-known rule that if in a document, boundaries and extent are at variance, boundaries should

prevail In the second column of the sale-certificate boundaries have been given, and these are said to include the whole extent mortgaged under the

original decrees. But I find no proof that the lands now sought to be sold lie within these boundaries. Boundaries have been given as the form

requires it, bat instead of the boundaries of each plot being stated a general description pf the whole area sold is entered. In this case the paimash

and survey numbers of the plots must be taken as a far more definite specification of what was sold than the boundaries.

As regards the first point, it was held by the Chief Justice in proceedings between these same parties in Subbaraya Rowthu Minda Nainar v.

Kuppusamy Iyengar 6 M.L.T. 278 : 1 Ind. Cas. 535 that the mortgage interest under the decree obtained by the Nadars includes the right to sell

the property in default of payment and that no order for sale of the decrees obtained by the Nadras was necessary in order to enable the Chetties

to execute the decrees which they (the Nadars) had obtained. This view is supported by the ruling in Tarvadi Bholanath v. Baikashi 26 B.P 305

wherein it was held that the sale of a mortgage-debt in execution by public auction carries with it the right to proceed against the mortgaged

property. No attachment and sale u/s 274 of the old CPC was considered necessary in such a case. In this case it appears that the hypothecated

mortgage decrees obtained by the Nadars were sold by the Kumbaconam Sab-Court at the instance of the Chetties and bought in with that

Court''s permission, and afterwards there was an amicable settlement in this Court at which the sale to the Chetties was confirmed.

Order XXI, Rule 55, Clauses (1), (3) and (6) of the new CPC which govern the present proceedings make the matter much clearer than

Section 273 of the old Code. Clause 1 expressly makes the rule applicable to decrees for sale in enforcement of a mortgage; Clause (3) declares

that the holder of the second decree shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute the

attached decree in any manner lawful for the holder thereof, and Clause (6) deals with the procedure to be followed as to giving of notice.

In Ramasamy Pillai v. Muthoo Chetty (1910) M.W.N. 4 : 7 M.L.T. 125 : 5 Ind. Cas. 834 a mortgagee was held to be a transferee for the

purposes of Section 134 of the Transfer of Property Act and to have aright as such to sue in his own name. The appellants in the present case are

in a stronger position as they are mortgage decree-holders and have by the compromise effected in this Court become purchasers of the decrees

obtained against the respondents. The whole interest of the Nadars in the decree obtained by them has passed to the Chetties by operation of law

and, therefore, the appellants were entitled to apply as transferees under Order XXI, Rule 16 for execution of those decrees to the Court which

passed them. These appeals must, for these reasons, be allowed with coats in this Court and the Court below and the execution petition must be

sent back to the Subordinate Judge for disposal according to law.