Vayya Goundar vs Chinna Bomma Goundar

Curgenven, J.—This is an appeal against the judgment of the Subordinate Judge of Tuticorin dismissing an appeal preferred by the 4th

defendant against the order of the District Munsif of Tuticorin passed in E. P. No. 518 of 1924 in O. S. No. 239 of 1910, on the file of the Court

of the District Munsif of Koilpatti, in so far as that order directs sale of item 2 of the mortgaged property. The mortgage bond was executed in

1896 to the plaintiff''s assignor who impleaded the 4th defendant as a puisne mortgagee of items 2 and 5. The defendant had purchased these

properties under a decree obtained upon that mortgage. In consideration of the 4th defendant waiving certain objections to the plaintiff'' claim, a

decree was passed on 18-3-1913, providing that of the several mortgage items Nos. 2 and 5 should be sold last. Before any sales had taken

place, one Chokalinga Goundan, a puisne mortgagee of items 3 to 6, had obtained a decree to which the mortgagor and the present respondent,

but not the appellant, were parties and under this decree he proceeded to bring items 3 to 6 to sale. He himself purchased these properties,

arranging with the respondent to deposit into Court a sum of Rs. 270 as being the rateable amount due from these properties to the respondent as

prior mortgagee. Having in this manner exonerated these properties, the respondent proceeded to enforce the decree against those that remained

unsold. It is unnecessary for me to concern myself with any application prior to that which is now in question. Under this application both the lower

Courts have construed the decree against the appellant holding that it is unnecessary that the items first made liable should be sold in Court auction

or their full value otherwise applied in satisfaction of the decree before items 2 and 5 became liable for sale.

I am unable to agree with this construction of the decree. It provides in terms that the mortgaged property or a sufficient part thereof shall be

sold, and that items 2 and 5 shall be sold last. This decree, as I have said, was based upon an agreement between the present contesting parties

and it seems clear that the intention was that the properties other than those in which the appellant was interested should be exhausted before his

items become liable. Now the position which existed when the present application was filed was that in certain proceedings to which the appellant

was not a party, the respondent had accepted exonerating items 3 to 6 upon deposit in Court, of a sum not representing their full value but only the

amount which was said to be rateably due upon them under the mortgage decree. If my construction of the decree is correct it was not open to the

decree-holder to accept some arrangement whereby the persons interested in the other properties should secure their exoneration by contributing

towards the decree, something less than the full value of those properties. The decree-holder could not for instance have forgone his right to sell the

properties in consideration of a private arrangement whereby he was to receive merely a proportionate amount due upon these properties under

the mortgage, and he could not thereupon pass on to sell the remaining items. This is however exactly what the decree-holder has been permitted

to do here. I have not been furnished with the figure which items 3 to 6 fetched in Chokalinga Goundan''s auction but it is clear that it included not

only the sum of Rule 270 deposited in respect of the respondent''s mortgage, but also the amount which was due to Chokalinga Goundan under his

own mortgage. In other words, the sale price of those items was not exclusively devoted to the satisfaction of the respondent''s decree, as in my

view the decree provides; but a part of the proceeds went to the discharge of a puisne mortgagee'' decree. This was a clear violation of the terms

of the decree and it cannot affect the question whether it was brought about by a private arrangement or by separate legal proceedings behind the

appellant''s back. The consequence to him has been that a liability now falls upon item 2 which, if the terms of the decree had been adhered to, it

would almost certainly have escaped. My conclusion accordingly is that the conditions which the decree makes precedent to the sale of item 2

have not been complied with, and upon this ground I allow this appeal, set aside the orders of the lower Courts, and dismiss the application in so

far as it relates to item 2, with costs to the appellant throughout.