Mahendra Koer vs Sat Narain Lal

Roe, J.—The appellant in this case is aggrieved by an order of the District Judge of Saran, setting aside an order of the 3rd Munsif of Chapra directing the sale of mortgaged properties in the following circumstances: Defendants Nos. 1 and 2 to the suit out of which these proceedings arise were the mortgagors of three properties. The defendants Nos. 3 and 4 were subsequent mortgagees of the same properties and defendant No. 5 was the auction-purchaser at the revenue sale of 16-annas share in the 2nd property mortgaged. The decree in the first instance made all the three properties liable for the satisfaction of the mortgage debt. The defendants Nos. 1 to 4 accepted this decision. Defendant No. 5 only appealed, and on his appeal he was released from liability under the mortgage on the ground that by the revenue sale the property No. 2 passed to him free of all incumbrances. The date of the original decree was the 4th May 1911, and of the Appellate Court decree was the 5th September 1911. In the year 1912 the decree-holder applied for and obtained an order absolute on the original decree. On putting the order absolute into execution the decree-holder was met by a petition on the part of defendant No. 1 to the effect that the preliminary decree having been set aside upon the appeal of defendant No. 5, the whole decree was void and inasmuch as there was in the decree of the Appellate Court no mention of any mortgage lien subsistent upon the property it must be taken that the mortgage lien had been destroyed by the Appellate Court''s decree, and that, therefore, defendants Nos. 1 and 2 were liable only for a money decree and defendants Nos. 3 and 4 should escape scott-free. The learned Munsif accepted this suggestion. It was at once exploded in the District Court. The order of the District Court is that the properties Nos. 1 and 3 be sold as mortgaged properties. The grounds taken in the District Court are again urged before us. It is suggested that the only decree which can be executed is the Appellate Court decree and that there is in the Appellate Court decree no security upon the mortgaged properties. With this contention we cannot agree. It is well settled that in any case in which one only of several defendants appeals, the result of the appeal will enure to the benefit of the other defendants only if the interests of the other defendants are inseparable from the interests of the defendant-appellant. In the case before us the interest of the defendants Nos. 1 to 4 was clearly distinguishable from the interest of the defendant No. 5. The result of the appeal by defendant No. 5 was to free only the property in which defendant No. 5 had interest, leaving untouched the decree of the original Court in so far as the interests of defendants Nos. 1 to 4 were concerned. On this ground the appeal must clearly fail.

A further ground taken is that inasmuch as the decree-holder has not filed the decree absolute we must assume that the decree absolute has no existence and that the proceedings in execution are, therefore, void. This ground was not taken in the lower Appellate Court. We have before us a certified copy of the order making the decree absolute and we must presume that the preliminary decree was made absolute and was, therefore, capable of execution as a mortgage decree. The appeal fails and is dismissed with costs. Hearing fee in accordance with the prescribed scale.

Imam, J.

I concur.