MATHU Vs. CHERU
LAWS(KER)-1955-1-13
HIGH COURT OF KERALA
Decided on January 03,1955

MATHU Appellant
VERSUS
CHERU Respondents

JUDGEMENT

- (1.) This second appeal arises in execution of a decree for sale of the hypotheca in enforcement of a mortgage. The mortgagors-judgment debtors are two brothers. After the mortgage there was a partition between them. The son of the first defendant obtained an assignment of the decree and seeks to execute the same in its entirety against the slice of property which has been allotted at that partition to the second defendant. The second defendants objection to that course was upheld by the Munsiff but was repelled by the Judge in appeal. The only point in second appeal is whether it is competent for the decree holder to recover the money due to him under a mortgage decree from any part of the mortgaged property as he likes. In my view, he can. 18 Cochin 471, AIR 1930 Allahabad 638 and 1954 KLT 752 decide the point in favour of the decree holder. The order of the lower appellate court is, therefore, right and the second appeal challenging it should be dismissed. In the circumstances I make no order for costs.;


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