P L D 1950 Dacca 31 (PLP)

AKRAM, C. J.‑

This appeal by defendant Nos. 1 and 5 arises of a suit for declaration of the plaintiff's title to the suit lands and khas possession of the same. The plaintiff's case was that one Madbab Chandra Nath borrowed Rs. 600 from a person called Dina Bandhu Nath on January 1, 1930, by executing a mortgage bond in his favour, which comprised two plots of lands, the homestead Plot No. 1 and the nal lands Plot No. 2 of the mortgage bond. Later on the said Madhab Chandra Nath again borrowed another sum of Rs. 300 by mort gaging only Plot No. 1 (namely the homestead) of the previous bond to the plaintiff some time in September 1930. Dina Bandhn Nath then brought mortgage Suit No. 351 of 1936 impleading the plaintiff also in the suit and on obtaining a mortgage decree applied for the execution of the same, in execution Case No. 107 of 1937. In the meanwhile, however, the plaintiff obtained a mortgage decree upon his own mortgage bond of September 1930 and in execution thereof purchased the homestead, (i.e., the aforesaid Plot No. 1) on 22nd September 1937. Having done so, he applied ostensibly under section 81, Transfer of Property Act, and secured an order for the sale of the vial land only (i.e), Plot No. 2 aforesaid in the first instance in execution Case No. 107 of 1937. The nal land only (i.e , Plot No. 2) was thereupon brought to sale in the execution case aforesaid, and the same was purchased by the plaintiff on September 18, 1939 for Rs. 1,162 odd and delivery of possession vas taken by the plaintiff on March 10, 1940, but when the plaintiff went to take actual possession, he was resisted by defendants Nos. 1 and 5 on the ground that on March 23rd 1437 defendant No. 1 had purchased the Pal land i.e., Plot No. 2 for a sum for Rs. 40 in execution of a money decree in Small Cause Court Suit No. 310 of 19.16 and obtained possession of the same and that defendant No. 5 had subsequently purchased the said plot from defendant No.

1. The main defence was: (1) the order of marshalling under section 81, Transfer of Property Act, was without jurisdiction and consequently the plaintiff acquired no title by his auction purchase in execution Case No. 107 of 1937 ; (2) that in any event the plaintiff could not recover possession of the suit lands without pay ment to the defendants a sum of Rs. 934 under section 82, Transfer of Property Act, by way of contribution. Both the Courts below decreed the plaintiffs suit. The defendants thereupon preferred the present appeal. Once again the defendants appellants have urged before us the same contentions mentioned above. It seems to me however, that the appellants in this case have entirely mis understood the situation and misconceived their position. No doubt it is true at section 81, Transfer of Property Act, has no application to the facts of this case; but neither has section

82. In, my opinion no 4 question either of marshalling or of contribution arises. Diva Bandhu Nath was clearly entitled to execute his decree against any of the mortgaged properties he liked, there was one single mortgage in existence at the time, and the equity of redemption, we may take it, was in defendant 1 who had made his purchase under 'the money decree while the mortgage‑suit was pending ; there was no other mortgage whir) existed for the application of section 81 or section 82, Transfer of Property. Act. I cannot see how there could be any marshalling or any claim for contribution as against the auction‑purchaser of execution Case No., 137 of 1937, in shoe Circumstances. Section 82, Transfer of Property Act, "applies to mortgagors utter se and gives one mortgagor a right to have the other's property contribute to the discharge of the mortgage debt." as was observed in the case of Umar Ali v. Asmat Ali reported in 58 Cal. 1167, at p. 1177 A I R 1931 Cal.

251. This right in my opinion cannot he availed of against the mortgagee or, the auction. purchaser I, accordingly, agree with the conclusion arrived at by the Court of appeal below, although I am unable to agree with it in the reasoning given in support of its conclusion. The appeal is therefore, dismissed but without costs. The cross objection by the plaintiff is also dismissed but without costs. AMIN AHMAD J.‑

I agree. K. M. A./A. H. Appeal dismissed.