Madras High Court
Kuttiana Gounden vs Muttia Gounden on 23 September, 1891
Equivalent citations: (1892)2MLJ14
JUDGMENT
1. The plaintiff sued on a mortgage bond executed in favour of himself and 6th defendant, alleging that 6th defendant was only a benami holder of the mortgage. The 6th defendant contended that he had equal rights with plaintiff and the District Munsif found that each was entitled to a moiety. Instead however of making 6th defendant a co-plaintiff, the District Munsif decreed in favour of plaintiff for half the mortgage-amount and in favour of 6th defendant, for the other half.
2. No appeal was preferred, and the plaintiff in execution of his half share brought the mortgaged property to sale. Then 6th defendant applied that it should be again sold for his half share, but was informed it could not be sold twice over and that he should apply for an order that half "the sale proceeds be paid to him. Hence the present application for half the sale proceeds which the District Munsif and District Judge have decided in favour of the 6th defendant.
3. It appears to me that the order of the courts below is wrong. The decree has not been passed jointly in favour of plaintiff and 6th defendant withiri the meaning of Section 231, C.C.P, but is in favour of each separatery fort his own moiety. Whether 6th defendant can execute a decree so irregularly passed may be a question, but as between plaintiff and 6th defendant, there is no decree to execute unciei Section 244, C.C.P. The question arising between them is not in respect of the furtherance of, or hindrance to, the manner of carrying out the execution of the decree. It is an alleged right arising in consequence of the plaintiff having executed the decree obtained by him against defendants 1 to 5. The remedy (if any) would appear to be by separate suit. See Harago-bind Das Koiburto v. Issuri Dasi I. L. E., 15 C, 187.
4. The order of the District Judge is set aside with costs.