Conditions for applicability of the provisions of section 52.

Balakrishna Ayyar, J.-On a mortgage executed by the mother of the respondent, a lady called Rajyalakshmi Amma, the receiver of the mortgagee’s estate filed a suit after the death of the mortgagor and obtained a decree in O.S. No. 9 of 1929, on the file of the Subordinate Judge of Ellore. The sale of the hypotheca fetched about Rs. 15,000. The balance due under the decree still amounted to about Rs. 28,000 and for this sum a personal decree was passed on 9th August, 1934, against the assets of the deceased in the hands of her heirs. In E.P. No. 70 of 1937, on the file of the Subordinate Judge of Ellore it was found that the value of the assets of deceased Rajyalakshmi Amma in the hands of the respondent was Rs. 4,000, and. to recover this sum the receiver attached certain properties in her possession. The respondent then contended that those properties had been gifted to her by her father on 11th August, 1934, that other properties belonging to the deceased consisting of some 154 acres of land in Yepur still remained available for the decree-holder and that the receiver should in the first instance be directed to proceed against those properties. The receiver contended that in E. P. No. 25 of 1935 on the file of the Sub-Court, Ellore, it had been decided that the Yepur property did not belong to the deceased mortgagor and that it was therefore open to him to proceed against the personal property of the petitioner to recover the sum of Rs. 4,000. He also contended that it was expensive and inconvenient to proceed against the Yepur properties since those properties were held under 82 pattas and the Sub-Registrar insisted on 82 separate encumbrance certificates being taken which would make the cost of proceeding against those properties prohibitive. The Subordinate Judge observed,

"Under these circumstances the ends of justice will be met by directing the receiver to proceed against the other properties in the first instance and after satisfying the Court that the deceased mortgagor had no interest in the Yepur property proceed against the property in question (viz., the property of the respondent)".

He therefore made an order along these lines while at the same time maintaining the attachment which had been effected of the respondent’s properties. The receiver had now appealed. Section 52(2) of the Code of Civil Procedure provides,

"Where no such property" (i.e., property of the deceased debtor) remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally."

Mr. Somasundaram, the learned advocate for the appellant, pointed out that is had been found in appropriate proceedings to which the respondent was a party that property of the value of Rs. 4,000 which belonged to the deceased mortgagor had come into her hands, that this property which consisted mostly of jewellery had been used by the respondent for her own purposes and that in any event she had failed to satisfy the Court that she had applied the property to satisfy the debt of the deceased mortgagor. It was clearly reasonable to presume that no such property remains in her possession. That being so, he claimed that he is entitled to execute the decree against the personal property of the respondent. Mr. Narasa-raju, the learned advocate for the respondent, attempted a two-fold answer. The first was that before the decree-holder could proceed against the respondent he was bound to exhaust all the properties of the deceased mortgagor. Secondly, the Court has a discretion in the matter and it is open to it to direct that the properties of the deceased mortgagor should be proceeded against in the first instance and that in the present case the l