Ahmad Husain and Others vs Tahir Husain and Others

Mukerji, J.—The sole question for determination in this appeal is whether the property against which a decree for sale is asked for is liable to pay the entire amount claimed or whether it is liable for only seven-eighths of the amount claimed.

It appears that by a decree based on an award passed in 1901, a certain property was held liable by way of a charge for the payment of certain profits. The suit is for realization of the said profits. In execution of a previous decree passed in a similar suit, a one-eighth share of the property charged was sold. It was purchased not by the plaintiff as stated in the judgment of the learned single Judge of this Court, but by certain other persons, some of whom are parties to the suit and others are not. The plaintiffs claim a right to bring to sale the remaining seven-eighths share for payment of their entire claim. The learned Munsif was of opinion that a deduction should be made of an eighth portion of the claim, because the property that remained liable was seven-eighths of the entire property.

The learned District Judge has upheld the decree of the Munsif and the decrees of the Courts below have been upheld by a learned single Judge of this Court.

We are of opinion that the remaining mortgage property is liable for the entire claim.

From the nature of the original transaction itself, the entire property was made security for the periodical claims that were to accrue from time to time. It must have been contemplated that, from time to time, a portion of the security would be sold to enable the plaintiff to realise the money then due to him. Every bit of the secured property is liable for the payment of the whole and there is no reason to abate the claim of the plaintiff in proportion to the extent of the property previously sold.

In the result, we allow the appeal, modify the decrees of the Courts below and direct that the entire claim of the plaintiff do stand decreed and that the property mentioned in the plaint be sold in default of payment. The usual decree for sale will be prepared in this Court with six months'' time for payment. The plaintiffs will get their entire costs throughout.