Rakhal Chandra Digar and Another vs Sidhi Nath Singh and Others

Chapman, J.—In this case the mortgagee, in September 1910, obtained a decree in a suit brought by him upon his mortgage bond. The decree was in the terms of the compromise which was to the effect that the amount agreed upon should be recovered from the mortgaged properties and that if that should prove in sufficient, the balance should be recovered from the other properties of the mortgagor. Upon the mortgaged properties being brought to sale, it was found that the mortgage was void u/s 46 of the Chota Nagpur Tenancy Act of 1908, which provides that no transfer by a raiyat of his right in his holding or any portion thereof by mortgage or lease for any period Which exceeds or might in any possible event exceed five years shall be valid to any extent.

The two lower Courts have agreed that the mortgage was invalid by reason of the provisions of this Act. The decree-holder then filed a petition asking for an order that the other properties of the judgment-debtor should be put up to sale in accordance with the compromise above referred to. To this the judgment-debtor objected on two grounds: firstly, on the ground that the other properties could not be brought to sale unless there was a second decree directing that sale, and, secondly, on the ground that it was not open to the decree-holder to proceed against these properties in execution of his decree but that in order to do so he must bring a suit upon the personal covenant contained in the mortgage-bond. These objections have been overruled by both the lower Courts and the case now comes before us in second appeal.

Of the oases cited before us there are only two directly bearing upon this point, viz., the case of Piribhu Narain Singh v. Baldeo Misra 4 A. L. J. 157 : A. W. N. (1907) 69 : 20 A. 200 and the case reported as Behari Lal v, Basheshar Dayal 14 Ind. Cas. 591 : 9 A. L. J. 569. where it was held that if the mortgaged property cannot be sold in execution of a mortgage decree, no decree u/s 90 of the Transfer of Property Act can be granted. Both these cases were decided by learned Judges sitting alone; and the former case appears to have been dissented from in a later decision reported as Pirbhu Narain Singh v. Amir Singh A. W. N. (1907) 83 : 29 A. 369. The law on this subject has been discussed at, length in the case of Javerbhai Jorabhai v. Gordhan Narsi 28 Ind. Cas. 44 : 39 B. 358 : 17 Bom. L. R. 259. There can be no doubt that at any time, up to the sale of the mortgaged property, the mortgagee can abandon his claim against the mortgaged property and ask for a personal decree and bring to sale the other properties of the mortgagor without first bringing to sale the mortgaged properties. It is quite clear that if the mortgagee brings a suit upon his mortgage-bond and it is found that the mortgage is invalid, it would be most inequitable to allow the mortgagor to defeat the claim of the mortgagee and to deprive him of money which is obviously due to him under a personal covenant to pay, and that the mortgagee should be prevented from realizing, his dues, unless there is an express stipulation in the bond that the mortgage debt is to be realized from the mortgaged properties and from the mortgaged properties alone. It is quite dear that there was no such stipulation in the present case. In fact there is a dear provision in the compromise decree that in the event of the mortgaged properties fetching a price insufficient to cover the mortgage debt there must be a personal decree against the other properties of the mortgagor. It has been argued that this was a mortgage decree and can only be executed as such. The fact is that it is not a mortgage decree in the strict sense of the term, inasmuch as it contains a direction that the other properties of the mortgagor should be proceeded against, and that is not the form of a mortgage decree provided by the Transfer of Property Act. The ordinary procedure is to draw up a personal decree against the mortgagor only in the event of the said proceeds proving insufficient. In my opinion although the correct procedure would have been to provide in express terms that there was to be a personal decree in the event of the mortgage being found to be invalid, yet I consider that such decrees should not be strictly interpreted in India and that justice should be administered between the parties, provided that neither party suffers by such a course. In my opinion the proper course to adopt in this case is to give the compomise decree a liberal construction. I am of opinion that the decree-holder is entitled to proceed against the other properties of the mortgagor judgment-debtor in the event of the mortgage being found to be invalid.

I would dismiss this appeal with costs.

Atkinson, J.

I conour.