Makhan Sahu and Others vs Mt. Bibi Kamrun Nissa and Others

Chatterji, J.—This is an appeal against an order refusing a personal decree under Order 34, Rule 6, Civil P.C. The plaintiffs obtained a preliminary mortgage decree on 15th June 1934 on the foot of three mortgages. The decree was made final on 16th December 1934. The first two mortgages were in respect of the same property and the third was in respect of two other properties. Between the preliminary decree and the final decree, all these properties excepting one covered by the third mortgage were sold in execution of a prior mortgage decree.

It is not disputed that there were no surplus proceeds of that sale left. The plaintiffs executed their decree against the remaining property not affected by the prior mortgage decree and, we are told, it was sold for Rs. 600 only. As this amount was far short of the decretal amount, the plaintiffs made an application under Order 34, Rule 6. The objection taken on behalf of the defendants was that under the terms of Order 34, Rule 6, it was incumbent upon the plaintiffs to exhaust the mortgaged properties before they could apply under that Rule. This objection has been accepted by the learned Subordinate Judge who has rejected the application. Hence this appeal.

The question for decision in this appeal turns on the interpretation of Order 34, Rule 6, Civil P.C. Apart from any decisions it seems to me that it is quite plain upon a true reading of this Rule that the conditions under which a personal decree may be asked for are equally satisfied if the properties directed by the mortgage decree to be sold are no longer available. It will be most unreasonable to hold that the plaintiffs before they can apply under Order 34, Rule 6, must go through the farce of selling the mortgaged properties, though the properties have ceased to be available to them.

The point is covered by authorities and I should in particular refer to the decision in Adhar Chandra Naskar Vs. Sarnwamoyi Dasi, , where on similar facts it was held that:

Where in a mortgage suit by a puisne mortgagee, a final decree for sale was passed under Order 34, Rule 5, Civil P.C., but before that decree could be executed, another decree was obtained by a prior-mortgagee in execution of which the mortgaged properties were sold in satisfaction of the debt due to the prior mortgagee and thereupon the puisne mortgagee applied for and obtained a personal decree under Order 34, Rule 6, the Court had jurisdiction to pass the decree under Order 34, Rule 6.

This is based on the Privy Council decision in Mt. Jeuna Bapu v. Parmeshwar Narayan Mahtha A.I.R.1918. P.C. 159 in which however the precise question for consideration was whether a personal decree could be validly made and embodied in the mortgage decree itself, and if so, how it was to be executed. Reference may also be made to the decision of this Court in Gagarnath Mahapatra v. Lokenath Sukul A.I.R.1921. Pat. 49 which lays down that where a mortgagee decree-holder has, in execution of his decree sold some of the properties but has not realized sufficient to pay off the amount due, and is unable to sell the remaining properties by reason of their being situated in a State which will not execute the decree of a British Indian Court, the decree-holder is entitled to a personal decree against the judgment-debtor.

In the present case the prior mortgage decree amounted to about Rs. 50,000 and the properties were sold for the same amount. So it would have been absolutely useless for the plaintiffs to sell those properties again in execution of their own decree. The learned Subordinate Judge considers that it was their duty to redeem the prior mortgage and as they did not do so, it was for their default that the mortgaged properties were sold and thus ceased to be available to them. This view is entirely wrong. No doubt the plaintiffs as subsequent mortgagees had the right to redeem the prior mortgage but it will not be correct to say that they were bound to do so. If they thought that redemption would not be of any advantage to them, they were quite at liberty not to exercise their right. The failure on their part to exercise this right in the present case does not in my opinion debar them from asking for a personal decree.

It is pointed out by the learned advocate on behalf of the respondents that though the suit was based on three mortgages, the decree that was passed was for the consolidated sum due on all the mortgages, and it is urged that inasmuch as the first mortgage bond was beyond six years of the suit, the decretal amount cannot be split up so as to give relief to the plaintiffs on the basis of the other bonds. This contention is without any substance.

In the plaint separate account was given and it will be an easy matter of calculation as to what amount would be due on the two mortgages which were within six years. From the amount so found due, the sum which has already been realised by the plaintiffs by sale of one of the mortgaged properties will be deducted and a personal decree will be passed for the balance. As the amount has not been determined, the matter will be sent back to the Subordinate Judge. The decree however cannot exceed Rs. 12,000 because the appellant before admission of his appeal relinquished his claim to a larger amount. There is another small point.

It is pointed out that the original mortgagor is dead and the application under Order 34, Rule 6 is directed against his heirs and therefore they cannot be personally liable. The decree will direct that the amount will be realizable from the assets, if any, left by the mortgagor.

The appeal is therefore allowed with costs throughout.

James, J.

I agree.