This appeal is directed against an order by which the Court below has refused execution of a mortgage decree made in favour of the Appellant on the 22nd December 1905. It appears that the Respondent executed a mortgage in favour of the Appellant, on the 27th of November 1900, in respect of specified shares in certain properties. The Appellant subsequently sued to enforce the security, and obtained the decree now under execution. Thereupon, on the nth March 1907, one Barhamdeo Narain commenced an action for declaration that the properties covered by the mortgage belonged to a joint Mitakshara family of which he him self and the mortgagors were members and that consequently the mortgagor had no authority to execute the mortgage in respect of any defined share of the property. He, therefore, prayed that the mortgage and the decree based thereon might be declared void and inoperative, and asked for a permanent injunction to restrain execution thereof. The Court of first instance found that the properties belonged to a joint Mitakshara family as alleged, and declared that the mortgage and the decree for sale were null and void; but the Court also declared that the right, title and interest of the mortgagor be sold in execution of the mortgage decree. The decree holder Defendant then appealed to this Court and the decision on appeal is to be found reported in Mahanth Ram Sunder Das v. Barhamdeo Narayan(1). The result of the appeal was to modify the decree of the original Court. It was held that the mortgage was void only in so far as it affected the specific share of the mortgagor, and that the declaration of the Court of first instance that the right, title and interest of the mortgagor might be sold in execution of the mortgage decree could not be maintained; it was further declared that the properties were to be held by the mortgagor and his co-sharer, the Plaintiff, in certain specified shares, and that the share of the mortgagor was to be held subject to the lien of the mortgagee for the sum advanced on the mortgage with interest due thereunder. This decree was made on the 8th July 1909. On the 24th November following, the decree-holder prayed for sale of the specified share of the mortgagor in execution of the decree obtained by him on the a 2nd December 1905. The judgment-debtor thereupon objected that the decree was incapable of execution, that the effect of the decision of this Court in the suit mentioned was to invalidate the decree, and that the only remedy of the decree-holder was to institute a fresh suit to enforce the lien declared by the decree of this Court. The Subordinate Judge has held that this objection is well founded, and in this view, he has dismissed the application for execution. The decree-holder has now appealed to this Court, and on his behalf it has been contended that the decree is capable of execution and may be enforced by sale of the specific shares to which the title of the mortgagor was declared by the decree of this Court. The answer to the question raised must depend upon a construction of the decision of this Court in the suit commenced by the co-sharer of the mortgagor, and upon a consideration of the principles applicable to cases of this description.
It cannot be disputed that the difficulty in the casa before us is attributable, in part at least, to the circumstance that when the decision of the original Court in the regular suit was modified by this Court, a self-contained decree was not prepared; if this course had been pursued no question could have arisen as to the extent to which the decree of the original Court was affected by the decision on appeal. But there is, in our opinion, no real difficulty in the solution of that question, if we bear in mind certain well recognised principles, though it may be considered that none of the judicial decision upon which reliance has been placed by both sides and to which we shall presently refer, is directly in point. In the case of Mahabir Prosad v. Ramyad Singh(2), the contest arose between a co-sharer of the mortgagor himself a member of a joint Mitakshara family, and the purchaser at the sale in execution of the mortgage decree. In the case of Jamuna Parshad v. Ganga Pershad(3), the contest was between the purchaser at the sale in execution of a mortgage decree based on a mortgage created by a member of a joint Mitakshara family and persons who claimed under the mortgagor. In the case of Bunwari Lal v. Daya Sanker Misser(4), the contest was between a purchaser at a private sale from a member of a joint Mitakshara family and the co-sharer of the transferor. In each of these cases it was ruled that the purchaser was liable to have the property taken away from him, though he was entitled to a charge upon the share of the transferor defined and specified in the decree of the Court; in other words, the Court refused restitution of the interest transferred except on condition that such interest was forthwith defined and made at once available for repayment of the price received by the transferor. This view was substantially approved by their Lordships of the Judicial Committee in Madho Parshad v. Meherban Singh(5), although as in that case the suit for cancellation of the conveyance by the co-sharer of the transferor was brought after the death of the latter that is after his interest in the joint property had passed by survivorship to the coparcener the Court held that he was not affected by any equity of the kind described. In the case before us however the suit for declaration of the invalidity of the mortgage and the decree founded thereon was commenced before the decree could be executed and the mortgaged premises brought to sale. On the analogy of the principle deducible from the cases mentioned, the Court, therefore, defined the shares of the mortgagor in the properties mortgaged and declared that the mortgagor was to hold them subject to the lien of the mortgagee for the repayment of the mortgage consideration. It is worthy of note that the coparcener of the mortgagor did not ask for any opportunity to redeem the mortgagee, and consequently no decree for redemption was made, as was done in the cases of Jamuna Parshad v. Ganga Pershad and Bunwari Lal v. Daya Sanker. The result was that the co-sharer who might have asked for leave to redeem, lost his opportunity. The questions in controversy, therefore, were necessarily restricted in scope and could be deemed to arise only as between the mortgagee and the mortgagor. The judgment-debtor has suggested that the decree in the mortgage suit has been rendered inoperative in its entirety and that in substance, there is no decree capable of enforcement, and the learned Vakil on his behalf has, in fact, contended that the decree-holder must be driven to a regular suit, although if a suit were now brought to enforce the lien which the mortgagee possesses upon the share of the mortgagor as specified in the decree of this Court, there would be no possible defence to the action. In support of this objection, reference has been made to r. 14 of Or. 34 of the Civil Procedure Code of 1908. That section provides that where a mortgagee has obtained a decree for the payment of money, in satisfaction of a claim arising under the mortgage, be shall not be entitled to bring the mortgaged properly to sale otherwise than by instituting a suit for sale in enforcement of the mortgage. We have been invited to apply this rule to the case before us, read with sec. 100 of the Transfer of Property Act and r. 15 of Or. 34 of the Code of 1908. In our opinion, these provisions do not affect the position of the Appellant. The decree obtained by him on the 22nd December 1905 entitles him to realise from the Respondent a contain sum of money, the decree further directs that upon failure of the Defendant to pay the specified sum within the prescribed time, the mortgaged property is to be sold by auction. The effect of the decree of this Court in the regular suit was, in substance, to leave untouched the decree in so far as it made the mortgagor Defendant responsible for payment of the specified amount. The true result of the decree of this Court was to declare that the mortgagee could realise out of the share of the mortgagor therein determined and specified his judgment-debt. It would manifestly be an idle formality to compel the decree-holder to have recourse to another suit in which the decree for money would be reproduced with a direction added that in the event of non-payment the specified share of the mortgagor in the mortgaged premises should be sold. The reason which underlies r. 14 of Or. 34 of the Code, was explained by this Court in the case of Ashu-tosh Sikdar v. Behati Lal Kittanii(6). The policy of the Legislature was to prevent the evil result which followed form sales of mortgaged properties by mortgagees in execution of money decrees. These consequences are stated to have been threefold, namely, first, the mortgagor who would ordinarily be entitled to the facilities afforded in a mortgage suit for repayment of the mortgage debt is summarily deprived of the equity of redemption; secondly, a purchaser would hardly pay full value for the equity of redemption, as he would take subject to the unascertained claim of the mortgagee, with the result that the mortgagee himself would purchase the property for a merely nominal sum; and, thirdly, if the purchaser took the property without notice of the mortgage, and was subsequently called upon to discharge the incumbrance, there might be great hardship upon him, unless he was afforded the benefit of the doctrine of estoppel. See Mohabir Singh v. Saira Bibi(7) and Mahammud v. Shib Sahai(8); Anglo Indian Codes, by Dr. Whitley Stokes, Vol. I, p. 734. It is obvious that none of the evil consequences suggested could possibly happen in the case before us because here the property would be sold at the instance of the decree-holder freed from his lien. The reasonable view to take, therefore, of the combined effect of the decree in the mortgage suit and the decree of this Court in the title suit is to hold that the decree-holder is entitled in execution of his decree to bring to sale the specific share of the judgment-debtor for realization of the judgment-debt. The learned Subordinate Judge appears to have held that the consequence of such view would be that the coparcener will not have any opportunity to redeem. The answer is that the coparcener had ample opportunity to do so and he never expressed any desire to redeem. See the observations of Maclean, C.J in Lata Suraj Prosad v. Golab Chand(9). It is further difficult to appreciate how such coparcener could be appropriately joined as a party to a suit to enforce the lien in favour of the Appellant against the specific share now owned by the Respondent. Hence the conclusion follows that the decree held by the Appellant must be executed against the shares of the properties defined by the decree of this Court in the regular suit.
The result, therefore, is that the appeal is decreed, the order of the Subordinate Judge reversed, and execution allowed to proceed. The Appellant is entitled to his costs both here and in the Court below. We assess the hearing fee in this Court at two gold mohurs.
It is conceded that this judgment will govern the other appeal, which will consequently be allowed with similar costs in both the Courts.
Appeals allowed.