The principle of contribution in mortgage debts and the limitations of raising objections in execution proceedings.

Kuppuswami Ayyar, J.

1. The plaintiff-decree-holder is the appellant. His petition to execute the decree obtained for recovery of money due on a hypothecation deed was dismissed by the lower appellate Court upholding the objection of the judgment-debtor that the decree-holder could not execute for the entire amount decreed inasmuch as he has become the purchaser of the one of the items of the hypotheca in a sale held in execution of the decree on a subsequent mortgage in which he has purchased the property subject to the mortgage sued on. The first Court disallowed the objection of the judgment-debtor and directed execution to proceed as per the terms of the decree. But the lower appellate Court found that he could not execute the decree and instead of ascertaining for how much he could execute, dismissed the petition. Hence the appeal.

2. The mortgage deed on which the suit Was filed was executed on the 18th February, 1929, to the appellant by the father of the first defendant for himself and as testamentary guardian for the second defendant-respondent for Rs. 6,000. Three items of properties were mortgaged under it. The first item alone belonged to the first defendants father, while the other two belonged to the respondent-second defendant. On the 17th September, 1930, there was another mortgage executed to this very plaintiff-appellant by the first defendants father alone in respect of item I for Rs. 2,000. Subsequently on the 31st December, 1932, there was a subsequent mortgage in respect of items 1 and 2 by the first defendants father for himself and as guardian of the second defendant to the third defendant for Rs. 3,000. On the 18th February, 1936, the present appellant filed O.S. No. 34 of 1936 on the file of the Sub-Court of Devakottah for recovery of the money due on the mortgage of the 17th September, 1930, against the first defendant alone and the subsequent mortgagee under the document of 31st December, 1932. A final decree was passed on the 2nd December, 1936. Execution was taken and the properties were purchased by the appellant-plaintiff in the sale held on the 26th July, 1937. The sale was confirmed on the 28th August, 1937. In the meanwhile on the 14th January, 1937, the plaintiff filed this suit, out of the execution proceedings in which this appeal arises, for recovery of the money due on the mortgage of the 18th February, 1929. The suit was O.S. No. 27 of 1937 on the file of the District Munsiffs Court "of Devakottah. That was filed against all the defendants, namely, the respondent the first defendant and the subsequent mortgagee. On the 23rd August, 1937, it came up for trial and the case was closed. Judgment was delivered on the 6th September, 1937, and a preliminary decree was passed. A final decree was passed on the 31st March, 1938, and an execution application was filed on the 11th October, 1938, for recovery of the amount due under the decree. On the 26th April, 1939, the respondent-second defendant filed I.A. No. 449 of 1939 under Act IV of 1938 for scaling down the debt and an order was passed on the 4th August, 1939, scaling down the debt to Rs. 680-7-0. On the 21st March, 1940, this execution petition out of which this appeal arises was filed. The respondent objected to the execution on the ground that there had been a merger by reason of the fact that the decree-holder-plaintiff had purchased item 1 in execution of the decree in O.S. No. 34 of, 1936. The first Court held that it would not be open to him to raise this plea and that the executing Court could not go into that question. But the lower appellate Court held that the point could be gone into in execution and dismissed the petition. Hence the appeal.

3. The points for consideration are (1) whether the decree was fully satisfied by reason of the purchase of the property, item 1 by the decree-holder in execution of the decree in O.S. No. 34 of 1936 on the file of the Sub-Court, Devakottah, (2) if not, whether the decree has been dis