Gopalaswami Rajapiriyar vs D. Narayanaswami Udayar and Another

Alfred Henry Lionel Leach, C.J.—Three questions of law arise in this appeal, but before stating them we will set out the material facts. On

the 15th April, 1912, the appellant''s father mortgaged immovable properties belonging to the joint family of which he was the head in favour of the

father of the first respondent to secure the repayment of a loan of Rs. 3,500. The deed stipulated that repayment should be made at the end of

three years from the date Of the deed. On the 26th December, 1912, the mortgagor died and was survived by his two sons, Namasivaya and the

appellant, who remained joint in estate: Namasivaya died in the month of January, 1919. On the 5th November, 1923, the mortgagee filed a suit

(O.S. No. 72 of 1923) in the Court of the Subordinate Judge of Kumbakonam to enforce"" repayment of the amount due under the mortgage. He

died during the pendency of the suit, and his son, the first respondent was substituted as the plaintff.

The mortgagee did not specifically ask for a personal decree against the appellant in the event of the mortgaged properties failing to realise

sufficient to discharge the dept in full, but the plaint was very widely drawn. In paragraph 6, the mortgagee averred that the appellant and his son,

the second respondent, were in enjoyment of the properties in suit and here added the following statement:

Even though they have an interest in the plaint properties, they are bound to discharge the plaint amount, etc., from out of the mortgaged properties

and other properties belonging to the family inasmuch as the plaint mortgage bond has been executed by Palaniyandi Rajapiriyar, father of the first

defendant and grandfather of the second defendant, for paying off prior debts which had been contracted for the purposes of the family and for

meeting the necessary expenses of the family.

The plaint concluded with four prayers, namely, (1) that the amount due oh the mortgage should be determined and the defendants directed to pay

it on or before a date to be fixed by the Court; (2) that in default, the mortgaged properties should be sold and the proceeds paid to the plaintiff;

(3) that the costs should be paid by the defendants; and (4) that the plaintiff should be awarded "" such other reliefs as may be deemed proper in

the nature of this suit.

On the 21st December, 1927, a preliminary mortgage decree was passed for a sum of Rs. 11,491-0-6. The appellant and the second

respondent appealed to this Court, which varied the decree of the Subordinate Judge. this Court held that there was due on the mortgage the sum

of Rs. 13,396-4-0 and that the appellant and the second respondent, his son, were liable for Rs. 3,356-3-10 to the extent of their interest in the

properties mortgaged. On the 12th December, 1934, the Subordinate Judge passed a final decree in accordance with this Court''s judgment and

eventually the properties were brought to sale. The sale did not, however, realize sufficient to discharge the debt in full. On the 12th August, 1937,

the first respondent, as the decree-holder, applied for a personal decree for Rs. 10,512-1-6 against the appellant and the second respondent. This

claim was subsequently reduced to Rs. 1,500 and on the 31st March, 1942, a personal decree for this amount was passed against the appellant.

In his application for a personal decree the first respondent averred that the claim for the personal decree was in time, inasmuch as Namasiyaya

with full authority from the appellant and the second respondent had acknowledged that the mortgage debt was due.

In Ratnasabapathi Chettiar v. Devasigamony Pillai (1928) 56 M.L.J. 10 : ILR Mad. 105 a Full Bench of this Court held that where a mortgage

deed contains a personal covenant to pay a mortgage debt and is registered, the period of limitation for a personal decree is six years under Article

116 of the Limitation Act. Therefore the mortgagee had only six years from the 15th April, 1915, the date when the mortgage debt became

repayable, in which to claim a personal decree, unless the period was extended by an acknowledgment either u/s 19 of the Limitation Act or in a

manner contemplated in Section 20. If the deed of the 1st April, 1918, had the effect of extending the period of limitation, the suit was in time even

as regards the personal remedy. The deed of the 1st April, 1918, was a conveyance of certain immovable properties belonging to the family in

order to raise money inter alia to discharge the debt due to the mortgagee. The appellant and the second respondent were away in Ceylon, where

the family had plantations. The appellant, on behalf of himself and the second respondent gave a power of attorney to Namasivaya to act for them

in their absence. It was by virtue of this power that the transaction of the 1st April, 1918, was entered into.

When the first respondent applied for a personal decree the appellant contended that the application was bad for three reasons : (1) No prayer

for a personal decree was contained in the plaint and a personal decree could not be passed without such a prayer in it; (2) the plaintiff had not set

out in his plaint the ground on which he sought to escape the operation of the law of limitation""; and (3) the power of attorney which the appellant

and the second respondent had executed in favour of Namasivaya was not sufficiently widely drawn to enable Namasivaya to give an

acknowledgment u/s 19 of the Limitation Act. All these contentions were rejected by the Subordinate Judge, and the appeal is from the personal

decree which he passed.

Inasmuch as the plaintiff pleaded in his plaint that he was entitled to have recourse to the other family properties in the event of the properties

mortgaged not proving to be sufficient to discharge the debt, that is, recourse to the extent of tile interest of the appellant and the second

respondent therein and prayed for such other reliefs as might be deemed proper in the nature of the suit, we consider that there was in effect a

prayer for a personal decree should it become necessary. But even if this construction is erroneous, we consider that it was still open to the plaintiff

to apply for a personal decree when it was found that the mortgaged properties had not realized sufficient to discharge the debt due to him. It is

usual to insert a specific prayer for a personal decree should it become necessary and in a preliminary decree for sale, drawn up in accordance

with Form No. 5, in Appendix D to the Code of Civil Procedure, liberty to the plaintiff to apply for a personal decree is given. This does not,

however, mean that a plaintiff in a mortgage suit is not at liberty to apply for a personal decree should liberty not be reserved to him in a preliminary

decree. The following observations of Rankin, C J., in Rao Sahib Sundarmull v. John Carapiet Golastaum (1931) 62 M.L.J. 170 are much in point

here:

According to the view taken by many Indian Courts it is wrong at the time of making a final order for sale to order that if the proceeds are

insufficient, there will be a personal decree. The usual practice is certainly that the personal decree is not even granted until the sale has been

carried out and the deficiency ascertained. It is a form of release, which, in the ordinary way, will not be given to a mortgagee unless and until this

stage has been reached. I need not say that the power of the Court to give that form of relief does not depend upon Rule 6 of Order 34 which is a

provision giving direction to the Court as to the time and manner at and in which the relief is to be given. In the present case if there was a

departure by consent from the strict form of an order for sale, it is to my mind nontheless erroneous to contend that there must needs be a

substantial departure in principle and in substance from the provisions of Rule 6. As regards the power of the Court in the mortgage suit to make

the order, I am not of opinion that the inclusion of the clause reserving leave to the plaintiff operates any magic in this matter. I have no doubt at aH

that it was open to the Court on motion in this case to give a personal judgment against the mortgagees for the balance.

That was a mortgage suit and a decree was passed by consent. It provided that it should not be executed by the sale of the mortgaged

properties or otherwise for a period of five years, if the amount due was paid by the defendants, in instalments agreed upon. Should the defendants

default, the plaintiff was to be at liberty ""to execute the decree by sale of the mortgaged properties in suit through Court in the usual way."" The

defendants did default and as the properties failed to. realise the decretal amount the plaintiff applied for a personal decree for the balance. The

Court held that he was entitled to it, and the judgment of the learned Chief Justice was adopted by the Privy Council.

An application for a personal decree is an application in the suit and only '' arises when it is found that the properties have not realised sufficient

to pay off the mortgagee. The mortgagee has a right to apply for a personal decree in such circumstances and his application can only be made in

the suit. The Court has no power to pass a personal decree until the eventuality referred to has happened. This disposes of the first contention.

In support of the second contention Mr. D. Ramaswami Iyengar has stressed the provision made by Order 7, Rule 6, CPC and has relied upon

the decision of the Bombay High Court in Gularn Hussain v. Mohamed Ali Ibrahimji I.L.R.(1910) 34 Bom. 540. It is true that the decision in that

case supports his argument, but we are not prepared to follow it. There the mortgage deed was dated the 18th April, 1887, and the suit was

brought on the 18th April, 1899. A decree was passed and the property was brought to sale, but proved insufficient to pay off the decree-holder,

who then applied for a personal decree. It was held that the application was time barred. The decree-holder sought to prove the payment of Rs.

200 as interest within six years of the suit. The plaintiff did not state that it had been paid as interest, but merely mentioned that Rs. 200 had been

received. He wanted to lead evidence to show that that payment was a payment towards interest. The Court held that as he had not alleged any

ground for exemption from the law of limitation he could not obtain the relief which he sought.

We consider that this is pushing technicality to the extreme. Order 7, rule.6 makes it incumbent upon a person seeking exemption from the law

of limitation to state the ground or grounds for exemption; but this does not mean that he must state the ground before the occasion arises for

seeking exemption....lf the mortgaged properties are sufficient to discharge the debt due to the mortgagee, it will not be necessary to show a

ground for exemption. of course the suit itself must be in time; but if it is brought in time, the plaintiff can plead the ground for exemption when it is

necessary to apply for a personal decree. When the plaintiff applied for a personal decree he set out in his application the ground on which he

claimed exemption from limitation in this respect and we think that this was sufficient compliance with the law.

There is no substance in the appellant''s contention that Namasivaya had no authority to acknowledge the mortgage debt. The power of

attorney granted to him has been exhibited and we have read it. It is ample for the purpose.

The appeal fails and is dismissed with costs. A slight correction in the decree as drawn up by the Subordinate Judge''s Court is, however,

necessary. The operative portion is preceded by this statement

And whereas it appears to the Court that the said sum is legally recoverable from the mortgagors defendants I and 2 personally, it is hereby

ordered and decreed as follows.

The mortgage amount is only recoverable from the first and second defendants to the extent of their interest in the properties of the joint family,

and a correction will be made to make this clear.