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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 the second defendant in execution of a money-decree against the
mortgagor; and on the 27th December, 1942, the respondent acquired the rights of the second defendant in this property. On the 19th March,
1943, 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 O.S. No. 15
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 for 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 of the Civil
Procedure Code, 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 have 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 of the 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. Pandit Parbhu Dayal (1942) 2 M.L.J. 390 : ILR (1942) All. 608 , 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 detail the effect of Section 60 of the Transfer of Property Act and in
particular the exception. They said:
But the exception is made in the latter 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 besaid 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 Sarju Kumar Mukerji v. Thakur Prasad I.L.R.(1920)All. 544. The decision
in that case was based on a decision of Mahmood, J., in Kudhai v. Sheo Dayal I.L.R.(1888) 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 Sarju Kumar Mukerji v. Thakur Prasad (1920) All. 544, 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 Sarju Kumar Mukerji'' v. Thakur Prasad I.L.R.(1920) All. 544 could not be applied to the case
under consideration. He held that there was not.
There is another line of cases based on Amir Chand v. Bukshi Sheo Pershad Singh I.L.R.(1906) 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 Full 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 execution--a 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 Amir Chand v. Bukshi Sheo
Pershad Singh (1906)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 Sarju 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.
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 Aiyar, J., in
two recent decisions. The first was ST. MR. Veerappa Chettiar Vs. Chandramouliswara Ayyar, by maternal uncle and guardian Gunnu Ayyar, .
The Allahabad case was net 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.