Kishundeo Singh and Others vs Jaglal Sahu

Jwala Prasad, J.—The only question that arises in this appeal is the construction of the decree passed by the Subordinate Judge of Patna in Suit No. 68 of 1920. The decree-holders, who are appellants before us, in execution of that decree, sought to proceed against defendants Nos. 1 to 3 praying for attachment and sale of their properties and for their arrest. Defendant No. 2, Jaglal Sahu, objected to the execution on the ground that in terms thereof, he or his properties could not be proceeded against. Jaglal was a purchaser from defendant No. 3, he having purchased the property from one who was an auction-purchaser at a revenue-sale of one of the mortgaged properties, Deokali. The decree-holder brought this suit to recover the money due under an usufructuary mortgage-bond u/s 68 of the Transfer of Property Act and asked for a mortgage-decree. He also in the alternative, prayed for a money-decree, upon the ground that he was dispossessed of the properties given to him under the zurpeshgi deed of the 5th April, 1898. Deokali, one of the mortgaged properties, was sold for arrears of cesses and Government Revenue and purchased by Deonandan, defendant No. 3, who in his turn sold it to Jaglal, defendant, No. 2. Bajidpur, the other mortgaged property was sold to defendant No. 4 by the Receiver appointed in an insolvency proceeding by the Calcutta High Court with respect to the properties of Khalilur Rahman, son of defendant No. 1, the mortgagor.

The suit was resisted by defendants Nos. 2 and 4. The Court refused to grant a mortgage-decree but held that the mortgagee-decree-holder was entitled to have a charge upon the surplus sale proceeds in the hands of the Collector under the revenue-sale in respect of the money due under the zurpeshgi deed. In the result, the Court gave a money decree to the mortgagee-decree-holder. That decree apparently was u/s 68 of the Transfer of Property Act, as is expressly mentioned by the Court in his judgment. The decree, therefore, could not be against defendants Nos. 2 and 4 who were only purchasers of the mortgaged properties, it could only be passed against the mortgagor upon his personal covenant to pay the mortgage-money. Defendants Nos. 2 and 4 never entered into any agreement or contract to personally pay the mortgage-debt to the mortgagee. There is no direction in the decree itself making the respondent (defendant No. 2) personally liable for the decree-debt. The learned Vakil for the appellant wants me to read into the decree the words which are not there and this he wants to do in the light of relief No. 5 in the plaint quoted in the recital portion of the decree. In that paragraph 5, the appellant asked for a direction to make the amount due under the mortgage-bond a charge upon the surplus sale proceeds of Mauza Deokali and for attachment of the same by means of an injunction. Towards the end of the paragraph he states that "the balance of the decretal amount may be ordered to be realised from the person and the property of the defendants or defendant who may be liable." The decree states as follows:

It is ordered and decreed that a modified decree be passed for Rs. 5,877-10-0 with proportionate costs as prayed for in para 5 of the plaint and that the balance left after the payment of the Government Revenue out of the proceeds of the sale, by the Collectorate of a portion of the Ijara properties lying in deposit under Chalans Nos. 251 and 9, dated the 26th March, 1919 and 22nd April 1919, respectively, be made liable for the satisfaction of the decree and that the interest on the decretal amount be charged at the rate of 6 per cent, per annum from the date of decree till the date of realisation, decretal amount Rs. 5,877-10-0 and that the sum of Rs. 651-8-0 be paid by the defendants to the plaintiffs on account of the costs of this suit, with interest thereon at the rate of 6 per cent. per annum from this date to the date of realisation.

The learned Vakil contends that, as mention is made in the decree to the relief in para. 5 quoted above, the true interpretation of the decree is that the concluding prayer of that paragraph asking for an order to realise the decretal amount from the person and property of the defendants must be held to have been granted. It appears that the reference to paragraph 5 is in relation to the prayer about the direction of the Court for making the decretal amount a charge upon the surplus sale proceeds of Mauza Deokali. It in no way refers to the concluding portion of paragraph 5, for in that case, it would have specified which of the defendants were personally liable for the decree, for the prayer of the plaintiffs was that the decree be passed against the defendants or such of them as may be liable. The Court did not apparently grant this prayer for a personal decree against the defendants. It is conspicuous that the direction portion of the decree with respect to the amount of Rs. 5,877 does not make any mention of the defendants. This omission can only mean that the prayer for the personal liability of the defendants was disallowed and unless there was express direction making the defendants personally liable, the decree cannot be executed against them or their property. This interpretation of the decree is in accordance with the judgment. It has already been shown that the Court in its decision held that the plaintiffs were entitled only to a money decree under Sec. 68 of the Transfer of Property Act. The order portion of the decree runs as follows:

The suit for Rs. 588-10-0 with proportionate costs be decreed in terms of relief 5 of the plaint. He is further declared to have a charge on the surplus sale proceeds which is in deposit in the Collectorate. I allow interest on the sum decreed at Rs. 6 per cent. per annum from the date of the decree till realisation of the same.

Therefore, only that portion of the relief No. 5 of the plaint was granted which related to the creation of a charge on the surplus sale proceeds with respect to the amount due under the mortgage-bond. No doubt, defendant No. 1 being the executant of the bond and the decree having been passed under Sec. 68 must be deemed to have been made personally liable under the decree.

Defendants Nos. 2 to 4 could not under the law be personally made liable and unless there was an express direction in the decree, it cannot be construed by reference to relief No. 5 of the plaint or the judgment as having made those defendants personally liable. Therefore, the view taken by the Court below seems to be correct. No doubt, the defendants were made liable for the costs of Rs. 651-8-0 under the express direction of the decree. Mr. Ganguli, on behalf of the respondent, contends that the direction in the decree about costs read with the judgment and the pleadings would show that all the defendants could not be made liable for the costs. He cites Baijnath Sahai v. Gajadher Prasad (1920) 1 Pat. L.T. 471 in order to interpret the decree in the light of the pleadings and the judgment. That case does not in the least help him. The decree here is clear in its terms. It is not in any way ambiguous; it makes the defendants (in the plural) liable for Rs. 651-8 specifically mentioned. Therefore, the order by the Court below is modified to this extent that all the defendants are liable for the costs mentioned in the decree of Rs. 651-8-0 and for this the appellant is entitled to proceed against the personal properties of all the defendants.

The appeal is dismissed. In the circumstances of the case, there will be no order as to costs.

Foster, J.

I agree.