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Judgment
Horwill, J.—The execution petition out of which this appeal arises was in execution of a final mortgage decree of 16th June 1942 in O.S.
No. 15 of 1939. One of the items mortgaged, namely, item 4, was purchased by defendant 2 in execution of a money decree against the
mortgagor; and, on 27th December 1942, the respondent acquired the rights of defendant 2 in this property. On 19th March 1913, by Ex. P-1,
the respondent obtained an assignment of the mortgage decree in O.S. No. 15 of 1939. He now seeks to execute the decree in Order Section
No. is of 1939; and some of the defendants opposed the execution of the decree on the ground that since the respondent had acquired the rights
of the mortgagor in a part of the property and had become a transferee-decree-holder, he was not entitled to execute the decree at all; and even if
he were, he would be entitled to execute it only for the decree amount minus the proportionate burden of the decree resting upon item 4. The
learned Subordinate Judge overruled the objection and ordered the decree to be executed for the full decree amount. He held that the equities in
favour of the appellants could be considered only in a suit by them for contribution. In appeal, the appellants have not argued the extreme case
which they adopted in the lower Court of contending that the decree could not be executed at all. They content themselves here with arguing that
the decree can be executed only for the proportionate share of the decree amount. The question whether the objections of the appellants are
tenable or not depends upon whether, in the words of Section 47, Civil P.C., these matters relate to the ""execution, discharge or satisfaction of the
decree."" If they do, then the Court is bound to consider the questions raised by the appellants; if not then the Court is precluded from going into
those questions; and the parties must have their equities adjusted in a separate suit. It is argued that the question raised relates to the discharge of
the decree; it is said that upon the respondent''s acquiring an interest in item 4 of the property and then obtaining an assignment of the decree, there
was a pro tanto and automatic discharge of the decree. Even if there had been no decree and we were considering a claim by a mortgagee who
had acquired the interests of a mortgagor, it would be difficult to see how there could have1 been an automatic discharge of the mortgage amount.
A mortgagor could resist a claim by the mortgagee for the full amount only by applying Section 60, Transfer of Property Act, which enunciates the
principle that the mortgagor cannot redeem the mortgage only in part, according to his share, except in cases where the mortgagee has acquired
the interests of a mortgagor. The last paragraph of Section 60 says:
Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a
proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all
such mortgagees, has or have acquired, in whole or in part, the share of the mortgagor.
In Shah Ram Chand. v. Parbhu Dayal AIR 29 1942 50 their Lordships of the Privy Council had to decide whether a mortgagee who had
released some of the property could sue for the whole of the mortgage amount from the mortgagors owning the other property; and they had
occasion in that connection to discuss in detatil the effect of of Section 60, Transfer of Property Act, and in particular the exception. They said:
But the exception is made in the later case (the case of the mortgagee acquiring the interest of the mortgagor) not on the footing that it is unjust that
the full burden of the security should be imposed on the other parts of the property; but because their claim to contribution has now become a
claim against the mortgagee or his interest in the equity of redemption. Circuity of action is thought to be avoided if partial redemption be permitted.
It is thus seen that the reason why a mortgagee who acquires the interest of a. mortgagor cannot be given a decree for the full amount is that he
has himself become owner of a part of the mortgaged property and so his share of the mortgage burden can be set off even in the mortgage suit
against the claim on the mortgage. There is in such a case no fiction of a pro tanto discharge of the mortgage amount, except in a very loose sense
of that expression. When we come to consider the case with which we have to deal in this appeal, namely, where a decree has been passed, it is
still more difficult to see how by the acquiring of the decree the decree can be said to have been automatically discharged in part. It seems to us
that a decree can only be discharged either by a payment of the whole or part of the decree amount or by agreement between the parties. There is
some authority for the appellants'' contention, however, in Dr. Sarju Kumar Mukerji Vs. Pandit Thakur Prasad, . The decision in that case was
based on a decision of Mahmood J. in Kudhai v. Sheo Dayal 10 All. 570 where the learned Judge said:
When subsequent to a decree a portion of the rights to which the decree relates devolves either by inheritance or otherwise upon the judgment-
debtor, or is acquired by him under a valid transfer, the decree does not become incapable of execution, but is extinguished only pro tanto.
The learned Judges then stated that they approve of this rule enunciated by Mahmood J. and proceeded to repeat it in their own words without
any fresh argument. This decision was followed by Madhavan Nair J. in Chinniah Rowther and Another Vs. A.B. Muthuraman Chettiar, . The
learned Judge held that by fusion of the interests of the mortgagor and the mortgagee, the mortgage decree had become discharged pro tanto and
the assignee-decree-holder could proceed against the property which he had not purchased after deducting the proportionate burden on his own
property of the mortgage debt. The correctness of the above statement in Dr. Sarju Kumar Mukerji Vs. Pandit Thakur Prasad, seems to have
been assumed; and the learned Judge therefore directed himself only to the special circumstances of the case before him to consider whether there
was any reason why the principles laid down in Dr. Sarju Kumar Mukerji Vs. Pandit Thakur Prasad, could not be applied to the case under
consideration. He held that there was not.
There is another line of cases based on Amirchand v. Sheo Pershad 34 Cal. 13, in which it was held that these questions cannot be raised in
execution. The learned Judges recognised that there had been some conflict of authority on this point and said that they would have been disposed
to refer the matter to a Pull Bench, but thought it unnecessary to do so; because it was clear that no apportionment could take place in execution
proceedings. It is true that the learned Judges were influenced to some extent by the difficulties that would arise in considering these matters in
execution, where all the persons interested in the apportionment were not parties to the executions matter that would seem to us irrelevant, because
if the questions raised relate to the discharge and satisfaction of a decree they must be considered in execution, however complicated they might
be. However, the learned Judges were definitely of opinion that the balance of authority was in favour of the view that such questions could not be
raised in execution proceedings. Although the matter was not discussed fully in Amirchand v. Sheo Pershad 34 Cal. 13 it is the basis of all
subsequent decisions of that Court on the same question. The Calcutta view has been set out very clearly in the judgment of Mitter J. in Aymamud
Sarcar Vs. Ebaruddin Sarcar and Others, and we are in complete accord with the learned Judge''s reasoning therein. The same view is held in
Patna, the leading case being Sarji Lal v. Baijnath Prashad AIR 1923 Pat. 44. A large number of cases were apparently cited before the Court,
though they were not specifically referred to in the judgment. The learned Judges said:
It is unnecessary to discuss all those authorities; it is sufficient to say that though here and there a discordant note has been struck, still the balance
of authority is clearly in favour of the view that the decree-holder has the conduct of the sale and is entitled to execute the decree against any of the
mortgaged property as he pleases, and that, if any question of equity arises between the decree-holder and the persons to whom the equity of
redemption in the mortgaged properties or in any of them may have subsequently become vested, that equity can only be enforced by an
independent suit for contribution and not in proceedings for execution.
6.The learned Judges do not specifically say that there was not a pro tanto discharge, but the judgment proceeds on the basis that the judgment-
debtors had nothing but an equity in their favour. If there had been a pro tanto discharge, all reference to equities would have been out of place; for
the decree would not be legally enforceable for the full amount. The Calcutta and Patna rulings have been followed by Kuppuswami Ayyar J. in
two recent decisions. The first was Veerappa Chettiar v. Chandra Mouleswara Iyer AIR 1943 Mad. 637. The Allahabad case was not there
referred to; but the learned Judge agreed with the decisions of the Calcutta and Patna High Courts in the cases above cited. In C.M.S.A. Nos.
249 and 250 of 1941 he followed his previous decision, quoting an extract from the judgment of King J. on the same point in C.M.S.A. No. 142
of 1937. In our view, there was no pro tanto discharge of the decree, and that view seems borne out by the weight of authority. The appeal is
dismissed with costs.