PADMANABHA PILLAI Vs. GOURI AMMA
HIGH COURT OF KERALA
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(1.) Each of several mortgagors is, in his own right, entitled to redeem the entire mortgage; and, if two of such mortgagors obtain decrees for redemption in separate suits, the later decree in no sense supersedes the earlier since, unlike as in the cases considered in Krishnan v. Kesava Pillai 1952 KLT 319 and Kochukunju v. Narayanan 1957 KLT 196 where the later adjudication determined the title on which the former was based, the later decree in no way affects the title to redeem found in the former. Irrespective of who succeeds in executing his decree first, the other decree holder will have to work out his rights against him, and with that the mortgage is not concerned. And that is so even if the decree holder in the earlier decree is a party to the later decree while the decree holder in the later decree is not a party to the earlier. Nor is the position changed it is, if anything only made stronger if the later decree is, as in this case, not for redemption of the entire mortgage but only of a fractional share therein after partition. The courts below should not, for a moment, have countenanced the plea raised, of all persons, by the respondent mortgagee a plea on the face of it as manifestly unsustainable as it is unjust that, because of the later decree for partition and redemption of a one third share, the earlier decree for redemption of the entire mortgage obtained by the appellant, (who is indisputably a mortgagor), with the respondent on the party array, was unexecutable with the palpably absurd and unjust result that he could keep the entire property for himself until the later decree holder thought fit to execute his decree, and two thirds of it even after that until a fresh suit for redemption was decreed.
(2.) I allow this appeal with costs throughout. The first court will restore the appellant's application for execution to its file and proceed with it in accordance with law.;
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