Execution of application of principle of equity.

This appeal raises an interesting point of equity arising in execution. Appellant is the 5th judgment-debtor in a mortgage decree in O.S. No.172 of 1935 involving 10 items of hypotheca comprising a total extent of about 32 acres. The date of the mortgage was 15th July, 1922. The preliminary decree was passed on 19th August, 1936 and the final decree in 1937. The appellant is only concerned with S. No.430, 6 acres 20 cents of dry land, which was purchased by his grandfather on 4th December, 1926, by a sale deed Exhibit II from the original mortgagor. He appeals against the dismissal of E.A. No.37 of 1951, which he filed in execution for a direction that this item of property be sold last in E.P. No.579 of 1949 in the following circumstances.

On 24th November, 1926, the mortgagor sold four items to the 7th respondent and on 17th June, 1935, some other items to the 8th respondent. All these alienees were impleaded in the mortgage suit O.S. No.172 of 1935. The decree was later assigned to Athappa Goundan, the 2nd respondent and was scaled down to Rs.5,000. The assignee decree-holder filed E.P. No.579 of 1949 for the sale of six items out of ten and sought to bring to sale only S. No.430 first although it is in the mortgage the penultimate item hypothecated. In the suit itself the 5th defendant claimed priority on the ground that with the money lent under Exhibit II, his grandfather discharged a previous mortgage of 1913. There was a finding in the suit that the 5th defendant was not entitled to priority as the discharge evidenced by Exhibit II was at best a case of partial discharge. In E.P. No.278 of 1945 in which S.No.430 was sought to be brought to sale first, the appellant took the same objection, which the Subordinate Judge overruled in the following brief order:-

“No question of order of priority for sale arises in this case since the petitioner wants to bring: to sale only one item. Objection overruled.”

Then in E.P. No.579 of 1949 pressed by the assignee decree-holder in which he persisted in seeking to bring to sale S. No.430 first, the appellant filed E.A. No.37 of 1951, which set out in detail the circumstances under which he prayed that the sale should proceed in an inverse order and that S. No.430 should be sold last. The Subordinate Judge disposed of it in a very unsatisfactory and brief order to the effect that the same objection was once before urged and overruled in E.P. No.278 of 1945. The learned Judge did not go into the merits of the application at all and appears to have failed to appreciate them.

One of the allegations in the petition was that the execution petition was not bona fide as the assignee decree-holder, who is a resident of the locality and a close relation of the parties, had taken the assignment with full notice of the equities attaching to the rival claims of the appellant and the other alienees. It was also-alleged that the assignee decree-holder was a leading and influential person, who was on inimical terms with the present appellant.

The ground on which the appellant sought for equity in execution was a covenant in the sale deed Exhibit II, by which his grandfather in 1926 purchased S.No.430, by the mortgagor that he would discharge the mortgage from the other items of hypotheca. The reason for this specific covenant was the existence of a prior mortgage of 1913 on this self-same item S.No.430 in favour of the appellant’s grandfather, which was discharged by the second mortgage. This is no doubt a case in which the appellant is not entitled to the statutory relief of marshalling under section 81 of the Transfer of Property Act, which is open only to a subsequent mortgagee of one or more items of property originally mortgaged by the mortgagor. This however does not mean that the appellant is precluded from any equitable consideration in execution and that a decree-holder has an unfettered right to bring any item of the hypotheca to sale in any order he pleases, and that an execution Cou