JUDGMENT

This writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs:

“a) To issue a writ of certiorari or other appropriate writ, direction or order quashing Ext.P5 common order dated 15.11.2006 as illegal, wrong, without jurisdiction and unfair.

b) To issue a writ of mandamus or other appropriate writ, direction or order declaring that Ext.P7 is illegal, wrong, without jurisdiction and unfair.

c) To issue a writ of mandamus or other appropriate writ, direction or order directing the Executing court to consider the right of the petitioner-mortgagee who has obtained substantial portion (5/8th share) of the equity of redemption and decide the matter and direct redelivery of the portion of the property to which the petitioner is entitled to at the earliest.

d) To issue a writ of mandamus or other appropriate writ, direction or order directing the respondents to maintain the status quo in respect of the mortgaged property 19= cents which was taken delivery of by them in execution in O.S No. 647/1985 of the Munsiff Court, Thiruvananthapuram pending disposal of the above writ petition and direct the respondents not to commit any waste in the property or induct any stranger into the property.

e) To issue an order directing the respondents 1 to 3 to pay costs and to pay reasonable compensation to the petitioner for the harassment and loss caused to the petitioner.”

2. The short facts of the case leading to the execution of the decree in O.S No. 647/1985 is as follows:

One Padmanabhan Raman mortgaged the plaint schedule property to the defendant who is the petitioner herein by deed No. 3366/66. After the death of Padmanbhan Raman his daughter, namely, Sathyavathy filed O.S No. 647/1985 for redemption of mortgage. The suit was decreed on 25.1.1999 and the decree has become final. The mortgagor Padmanabhan Raman is survived by Sathyavathi and her brother. Suit was filed by Sathyavathi alone without impleading Bhargavan, who is also the legal heir of the mortgagor. Sathyavathi claims one half share of the equity of redemption. The decree holder Sathyavathi filed E.P No. 889/1999. Pending E.P the defendant purchased the share of Bhargavan by sale deed No. 4020/1999. After Sathyavathy's death, her legal heirs were impleaded as additional decree holders. Pending execution petition the defendant purchased 1/8th share of 4th decree holder by sale deed No. 2488/2005. The mortgagor Padmanabhan Raman is the maternal uncle of the defendant mortgagee. After the purchase of Bhargavan's share the defendant/mortgagee filed O.S No. 206/2000 for partition and separate possession claiming 3/4th share in the property. According to the mortgagee he has constructed a building in the property and effected other improvements in the property. Suit was dismissed on 1.9.2003 holding that it is barred under Section 47 of the Code of Civil Procedure. It is pleaded in the suit that in the event of dispossession of the mortgagee from the said building in execution of the decree in O.S No. 647/1985 before settlement of accounts and partition he will be put to irreparable loss and injury. The defendant in O.S No. 206/2000 who are the decree holders resisted the suit. It is contended that the execution petition is in the final stage of eviction of the mortgagee who is the present plaintiff, that the suit was filed on the strength of illegal and fraudulent document obtained from a person who has no interest over the property, that the plaintiff has no manner of right over the plaint schedule property as the right of Padmanabhan Raman devolved on his daughter Sathyavathy and that the value of improvement has already been remitted before the executing court and that the plaintiff has no fractional right of equity of redemption and prayed that the suit may be dismissed. The learned Munsiff raised a preliminary issue regarding the maintainability of the suit. The court dismissed the suit finding that the suit is barred by Section 47 of the Code of Civil Procedure. The learned Munsiff held that the dispute arising between the parties can be determined by the court executing the decree in O.S No. 647/1985 and this suit for determining the above question is barred under Section 47 of the Code of Civil Procedure. Ext.P4 is the judgment. A.S No. 94/2004 filed challenging the decree and judgment was dismissed stating the very same reasons stated by the learned Munsiff. Ext.P6 is the judgment in A.S No. 94/2004.

3. The appellate court in A.S No. 94/2004, filed against the dismissal of O.S No. 206/2000, held that the subject matter of the present suit is the subject matter in O.S No. 647/1985 and the relevant issues relating to the mortgage have been decided by the court in the said suit, that the defendant had already deposited the value of improvements as per the terms of the decree in O.S No. 647/1985, that they have filed an execution petition and the same is in the final stage and observed that the prayer of the plaintiff is that he is entitled to get 3/4 share in the plaint schedule property and that he is also entitled for a permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property in O.S No. 647/1985. The appellate court in Ext.P6 also observed that the records produced before the court reveals that the said matter is exclusively decided in O.S No. 647/1985 and without resorting to his legal remedies in the execution proceedings the petitioner herein filed a separate suit which is barred under Section 47 of the Code of Civil Procedure. The court held that it is well settled that the question relating to the execution, discharge and satisfaction of the decree is covered by Section 47 of the Code of Civil Procedure and such questions can be decided only by the court executing the decree and not by a separate suit. The appellate court made clear that all aspects pertaining to the dispute between the decree holder and the judgment debtor required to be determined only in the execution petition and not by a suit. After stating the principles the appellate court in paragraph 9 of Ext.P6 held as follows:

“9. On going through the pleadings of the parties, I find that the subject matter and the dispute arising between the parties can be determined by the court executing the decree and no separate suit will lie as the suit for determining the discharge, satisfaction and execution of the decree is barred u/s 47 of Code of Civil Procedure. Hence the lower court has rightly entered into a finding that the suit is not maintainable. I do not find any reason to interfere with the findings recorded by the lower court. The claim of the plaintiff, if any, can be agitated in the execution proceedings and as such the suit is not at all maintainable. Therefore there is no merit in the plea of the appellant that the lower court went wrong in deciding the issue. Accordingly this point is found against the appellant.”

4. Learned Munsiff dismissed O.S No. 206/2000 finding that the suit is barred by Section 47 of the Code of Civil Procedure. While A.S No. 94/2004 filed against the said decree and judgment is pending before the appellate court, the defendant/mortgagee approached the execution court and filed E.A Nos. 845 & 846 of 2006. E.A No. 845/2006 was filed praying to appoint a commissioner to divide the property by metes and bounds and for allotting the petitioner's 5/8th share. The connected application, E.A No. 846/2006 was filed by the judgment debtor praying to keep in abeyance the proceedings of delivery till partition and separate possession of the petitioner's share over the plaint schedule property is determined. The decree holders opposed the prayer in both applications. It is inter alia contended that if the judgment debtor wants partition and separate possession of his share as alleged, the remedy open to the petitioner is to file a suit for partition and separate possession after effecting delivery as per the decree. It is also contended that it is not possible to pass a preliminary decree and final decree in execution proceedings and therefore the prayer of the judgment debtor to divide the property for separate allotment of 5/8 share is not sustainable in law. The execution court by order dated 15.11.2006 in the above said E.As, marked as Ext.P5, held that the petitioner's prayer is not allowable since the petitioner can file a suit for partition and separate possession after redeeming the property by the decree holder and that it is not possible to pass a preliminary decree or final decree in the execution proceedings. The execution court in Ext.P5 order also noticed the fact that the judgment debtor mortgagee filed O.S No. 206/2000 for partition, that the same was dismissed and A.S No. 94/2004 is pending before the appellate court. The execution court dismissed the said E.As finding that the petitions are not maintainable.

5. Going by the decision taken by the court in O.S No. 206/2000 and in the appeal filed against the said suit as A.S No. 94/2004 and the decision taken by the execution court vide Ext.P5 order, it is surprising to see that the courts took conflicting and contrary stand. When the petitioner who is said to be the purchaser of fractional interest in the equity of redemption after passing of the decree of redemption approached the civil suit for partition, the civil court held that the suit is not maintainable and that the remedy open to the party is to move the execution court for appropriate reliefs. Subsequently, the same stand was taken by the appellate court in the appeal filed against the decree and judgment in O.S No. 206/2000. The petitioner mortgagee approached the execution court by filing E.A Nos. 845 & 846 of 2006 for appropriate reliefs. But the execution court quite contrary to the decision taken by the court in civil suit held that the remedy open to the petitioner is to file a suit for partition and separate possession after redeeming the property by the decree holder. The net result is that the petitioner is left with no remedy. The execution court failed to follow the decision passed by the civil court in O.S No. 206/2000 which was later confirmed in A.S No. 94/2004. The approach to the same question by the civil court and the execution court is mutually conflicting and is contradictory. Subsequently, the execution court passed Ext.P7 order dated 12.12.2007 whereby the court appointed a commissioner to assess the improvements and ordered delivery of the property. Pursuant to Ext.P7 order delivery was effected. The co-owner was dispossessed and property was delivered to the decree holder who holds only fractional interest.

6. At the time of filing of O.S No. 206/2000 the petitioner claimed that he purchased 3/4 share. Subsequently, in 2005 he purchased 1/8th share belonging to the 4th decree holder Lakshmi Kiran by sale deed No. 2488/2005. Lakshmi Kiran is one of the legal heirs of decree holder Sathyavathi. On her death, the legal heirs including Lakshmi Kiran are recorded as the legal heirs of deceased Sathyavathy.

7. Ext.P1 is the order of the Sub Court, Thiruvananthapuram, in I.A No. 2121/1980 in O.S No. 35/1968. In Ext.P1 it was declared that Sathyavathy is entitled to one half share of the plaint schedule property. The petitioner purchased the share of brother Bhargavan and subsequently, as stated above, purchased 1/8th share belonging to the additional 4th decree holder Lakshmi Kiran. Ext.P2 is the sale deed No. 4022/1999 executed by Bhargavan assigning his share in the mortgage property to the petitioner. Ext.P3 is the sale deed No. 2888/2005 by which Lakshmi Kiran sold her share to the petitioner. Thus one of the legal heirs of the decree holder sold her share to the mortgagee. By Ext.P3 sale deed the mortgage becomes merged with the sale and the result is that there is extinguishment of the mortgage. Order XXI Rule 15 of the Code of Civil Procedure enables a joint decree holder to execute the decree in its entirely, but if the whole of the decree cannot be executed this provision cannot be of any avail. In that event the decree holder will have to work out his rights in a suit for partition. In the said circumstances the order passed by the execution court to deliver the property to the decree holders is wrong. Therefore the delivery effected is a wrong act. Ext.P4 is the judgment of the Munsiff Court in O.S No. 206/2000 and Ext.P6 is the judgment in A.S No. 94/2004. Both the trial court as well as the appellate court in O.S No. 206/2000 and A.S No. 94/2004 held that the issues arising between the plaintiff and defendant can be determined by the court executing the decree in O.S No. 647/1985, that there is bar under Section 47 of the Code of Civil Procedure and therefore the suit is not maintainable. In view of the decision taken by the civil court in O.S No. 206/2000 and in the appeal filed against the decree and judgment of the said suit, the only course open to the execution court is either to order division and separate possession if the parties agrees, if not, to direct the decree holder to file a suit for partition. This is a case where the mortgagee/judgment debtor after passing the decree obtained share in the mortgaged property.

8. Learned counsel for the petitioner brought to the notice of this Court the decision of the Apex Court in Jagdish Dutt v. Dharam Pal (1999 (3) SCC 644) wherein it was held as follows:

“7. When a decree is passed in favour of a joint family the same has to be treated as a decree in favour of all the members of the joint family in which event it becomes a joint decree. Where a joint decree for actual possession of immovable property is passed and one of the coparceners assigns or transfers his interest in the subject-matter of the decree in favour of the judgment debtor, the decree gets extinguished to the extent of the interest so assigned and execution could lie only to the extent of remaining part of the decree. In case where the interest of the coparceners is undefined, indeterminate and cannot be specifically stated to be in respect of any one portion of the property, a decree cannot be given effect to before ascertaining the rights of the parties by an appropriate decree in a partition suit. It is no doubt true that the purchaser of the undivided interest of a coparcener in an immovable property cannot claim to be in joint possession of that property with all the other coparceners. However, in case where he is already in possession of the property, unless the rights are appropriately ascertained, he cannot be deprived of the possession thereof for a joint decree holder can seek for execution of a decree in the whole and not in part of the property. A joint decree can be executed as a whole since it is not divisible and it can be executed in part only where the shares of the decree holders are defined or those shares can be predicted or the share is not in dispute. Otherwise the executing court cannot find out the shares of the decree holders and dispute between joint decree holders is foreign to the provisions of Section 47 Code of Civil Procedure. Order XXI Rule 15 of the Code of Civil Procedure enables a joint decree holder to execute a decree in its entirety but if whole of the decree cannot be executed, this provision cannot be of any avail. In that event also, the decree holder will have to work out his rights in an appropriate suit for partition and obtain necessary reliefs thereto.”

It is settled as laid down by the apex Court that where a joint decree for actual possession of immovable property is passed and one of the coparceners assigns or transfers his interest in the subject matter of the decree in favour of the judgment debtor the decree gets extinguished to the extent so assigned and execution could lie only to the extent of remaining part of the decree. In case the judgment debtor is already in possession of the property, unless the rights are appropriately ascertained, he cannot be deprived of the possession thereof for a joint decree holder can seek execution of a decree in the whole and not in part of the property. Order XXI Rule 15 of the Code of Civil Procedure enables a joint decree holder to execute the decree in its entirely but if whole of the decree cannot be executed, this provision cannot be of any avail. The Apex Court held that in that event also the decree holder will have to work out his rights in an appropriate suit for partition and obtain necessary reliefs thereto.

9. When the mortgagee purchased equity of redemption, then the mortgage becomes merged with the same and the result is that there is extinguishment of mortgage. Therefore if there is purchase of mortgaged property by the mortgagee himself there will be an extinguishment of the mortgage or mortgage will be treated to have merged in the same, with the result that the mortgage is extinguished. In the result, where the mortgagee acquires a portion of the property by way of purchase, there is merger of rights and the mortgagors are entitled to a pro rata deduction from the amount due under the mortgage in respect of the property sold.

10. In this case the share claimed is 5/8th share in the mortgaged property. It is a definite share. In the event of transfer the decree gets extinguished to the extent of the interest so assigned and execution could lie only to the extent of remaining part of the decree. If the parties agree and co-operate the execution court can go into the question as to whether the property can be divided in between the parties. Such a course can be adopted to avoid multiplicity of suits and dragging the decree holder to file another suit for partition. A metes and bounds division can be resorted to only if the parties agree for such division mutually accepting the shares claimed. If it is not possible to divide the property by metes and bounds in the execution proceedings as stated above, then the course open to the court is to direct the decree holder to work out his right in an appropriate suit for partition and obtain necessary reliefs thereto. Going by the dictum laid down by the Apex Court, in the circumstances of the case the remedy open to the decree holder is to file a suit for partition.

11. Referring to Section 47 of the Code of Civil Procedure the Apex Court in N.S.S Narayana Sarma v. Goldstone Exports (P) Ltd. (2002 (1) SCC 662) held as follows:

“The legislature has enacted the provision with a view to remove, as far as possible, technical objections to an application filed by the aggrieved party whether he is the decree holder or any other person in possession of the immovable property under execution and has vested the power in the executing court to deal with all questions arising in he matter irrespective of whether the court otherwise has jurisdiction to entertain a dispute of the nature. This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the courts seized of an execution proceedings. The court cannot shirk its responsibility by skirting the relevant issues arising in the case”.

In the decision reported in B.T Kempanna v. T. Krishnappa (AIR 1973 Mysore 58) it was held as follows:

“When the mortgagee purchased the equity of redemption, then the mortgage becomes merged with the sale and the result is that there is extinguishment of the mortgage. It is also established that unless the mortgagee declares either by express words or by necessary implication that the mortgage shall continue to subsist it will not continue. It is also necessary to remember that the provision for continuation was made for the benefit of the mortgagee and not for the benefit of others. The result, therefore, would be that if after the mortgage there is a sale of equity of redemption or the purchase of the property by the mortgagee himself, it would be clear that there will be an extinguishing of the mortgage or mortgage will be treated to have merged in the same, with the result that the mortgage is extinguished”.

A Division Bench of the same High Court in the decision reported in Patel Kempegowda v. Channaveeriah (AIR 1958 Mysore 43) laid down the proposition that;

“Where the mortgagee acquires a portion of the mortgaged property by way of purchase, there is a merger of rights and the mortgagors are entitled to a pro rata deduction from the amount due under the mortgage in respect of the property sold”.

12. The writ petition is of the year 2007. During the pendency of the writ petition the petitioner died and additional petitioners 2 to 4 were impleaded as legal heirs of the deceased petitioner. On 13.1.2007 urgent notice was ordered. When the matter was taken up for final hearing it is noticed that the contesting respondents 1 to 3 did not enter appearance. Only the 4th respondent entered appearance who is supporting the petitioner. Respondents 2 & 3 signed but did not appear before the court. Finding that notice was not served on the first respondent, this court again directed to issue urgent notice to the said respondent with hearing date. I.A No. 11242/2009 was filed for declaration of service of notice on the first respondent finding that one year and nine months have elapsed after issuance of notice. Neither the notice form nor the envelope of 1st respondent has been returned. Hence by order dated 17.11.2009 this Court allowed the I.A and declared the service of notice on the 1st respondent.

13. Learned counsel for the petitioner was heard on 28.10.2010 and subsequently posted the case to 1.11.2010 Finding that some important issues affecting rights of the respondents 1 to 3 are involved this Court took the view that another opportunity shall be given to the respondents 1 to 3 to appear and contest the case. A detailed order was passed on 1.11.2010 By the said order this Court ordered to serve notice by special messenger. Notice was not served on respondents 1 to 3 since they refused to accept notice stating that the address mentioned in the writ petition is not correct. Therefore, the matter was again heard on 8.11.2010

14. In the facts and circumstances and legal position which I have discussed in detail in the preceding paragraphs, I find that Exts.P5 & P7 orders are liable to be set aside. Accordingly, I set aside Exts.P5 & P7 orders. The execution court shall issue order directing the decree holders to restore the property to the petitioner/judgment debtor. After redelivery, the execution court shall examine whether division by metes and bounds is possible in the execution proceedings, if not, the court shall direct the decree holder to work out his rights in an appropriate suit for partition. If the parties agree for a division according to their share, they will have to execute a partition deed.

The writ petition is allowed as above.