C.S. Sesha Iyer vs Arimuthu Vathyar and Others

Seshagiri Aiyar, J.—In this case as the counter-petitioner was not represented before me I requested Mr. Rangaswami Iyengar to assist me

as amicuscurix, and I must express my indebtedness to him for the assistance he has rendered in the decision of this case. The matter which has to

be decided has been fully argued before me and I think there is no object to be gained by reserving judgment. The facts are these: A suit was

brought by the 1st mortgagee impleading the mortgagor and the 2nd mortgagee for sale of the property. A decree was passed directing the

property to be sold. The sale-proceeds were brought into Court and the plaintiff, the 1st mortgagee, was paid out. The direction as regards the

other defendants is simply '' that the balance, if any, be paid to the defendants."" The puisne mortgagee, who is the petitioner before me, was ex

parte. He did not prove the amount due to him under the mortgage. He now seeks to prove the amount due to him under the mortgage in the Court

executing the decree and prays for an order that the mortgagor be directed to pay the amount due to him. I may mention here that when the sale-

proceeds were brought in after paying the first mortgagee, the surplus was paid out to the mortgagor.

The question under these circumstances is, whether the executing Court can enquire into the amount due to the second mortgagee and direct the

amount to be paid out of the surplus sale-proceeds. There are no direct-decisions on the point, but the observations of Justice Henderson, to

which my attention was drawn by Mr. Rangaswamy Iyengar, in Berhamdeo Per shad v. Tara Chand 9 C.W.N. 989 cover this case. The learned

Judge there says, Moreover, the amount due on their encumbrance had not been ascertained and no steps had been taken to have it ascertained,

and, therefore, the Court executing the decree of the appellants was not in a position, after defraying the expenses of the sale and the prior

encumbrance of the appellants, to apply the surplus proceeds in discharging the interest and principal money due on the plaintiff''s mortgage."" In

that case the second mortgagee who had been a party to the suit and whose claim was not ascertained sued subsequently. It was objected that no

suit lay as the matter was one to be enquired into in execution. The learned Judge points out that the second suit does lie and that it is open to the

second mortgagee to treat the surplus sale-proceeds as representing the mortgaged property and proceed to realise the sum due to him from that.

The observations of the learned Judges in Debendra Nath Sen v. Mirza Abdul Samed Seraji 1 Ind. Cas. 264 also show that if the claim of the

puisne mortgagee has not been ascertained a second suit will not be barred. However, I am expressing no definite opinion as to whether a second

suit will lie. I am only concerned to decide whether this matter can be enquired into in execution.

Mr. Krishnaswamy lyengar has drawn my attention to the practice of the English Courts under which the master is directed to take an account

of the amount due to the puisne encumbrancers. I take it that that is in consequence of a direction contained in the decree, and not that the master

has an inherent power in execution to take accounts if there is no such direction in the original'' Hape Mills Ltd 9 Bom. L.R. 1380 does not take

the matter"" any further. Mr. Justice Davar therein says that it is open to the Court which passed the decree to give directions to ascertain he

amount due, � respect of the decree that has been passed. Ordinarily when a decree is to be executed, the executing Court has only the power

to carry out the specific orders contained in the decree. The power to enquire into the amount due to the mortgagee would necessitate the issue

being raised as to whether the amount had been disaccharide and whether there is any amount remaining due This is not a matter which should be

left to be disposed of by the executing Court A decree may have to be executed in a Court different from the Court which passed the decree and it

would be unduly enlarging the powers of the executing Court to enable that Court to enquire into a matter which has not been heard and decided

by the Court which passed the decree

On the whole I have come to the conclusion ascertain the amount in the suit to which he, was made a party. I dismiss the petition.