Ramaswami Naicker and Others vs Chinnathayammal

Srinivasa Ayyangar, J.—There are no merits whatever in this second appeal, because it is, as admitted frankly, merely an attempt on the part

of the appellants to escape liability for payment of costs in appeal decreed by the appellate Court. The argument for the appellants may be briefly

put thus: In all mortgage suits for sale whatever costs may be ordered should be realized in the first instance only by the sale of the mortgaged

property and it is only if after the sale of the securities it should be found that the sale proceeds are insufficient to pay up the whole amount inclusive

of cost to the decree-holder, that the decree-holder can apply for execution against the person of the judgment-debtor. In this case satisfaction of

the original decree was entered up by payment of the amount for which the sale was ordered. As satisfaction of the decree for she has been

entered up, the property cannot now be brought to sale, and if the argument of the appellants should be accepted that the decree-holder has a right

to seek execution against the judgment-debtor personally for costs only after exhausting the securities, then in this case the decree-holder should go

without any remedy, because the dilemma on that argument is that he cannot get his costs unless the property is sold and the property cannot now

be sold. Though thus the attempt of the appellants is devoid of any merits, still he would have been entitled to succeed if his contention on the law

should be bound to be accepted and given effect to. But I am glad to have come to the conclusion that the law is neither so senseless nor so

helpless.

A large number of cases have been referred to by the learned vakil for the appellants, but before proceeding to refer to any of them, three

observations require to be made. The first is, that all questions with regard to the matter have, so far as I am able to see, arisen only in the form

whether a decree for costs as such should be allowed to be executed against the person of the judgment-debtor when the security still remains

unsold and is available for sale. No Court of law and no decision has been shown to have held that when for some reason the mortgage security is

not available for sale, still the decree for costs although subsisting and executable cannot be executed at all. In other words, on considerations, legal

or equitable, Courts of law have in some cases merely indicated the steps in the procedure or the priority of recourse to be adopted by the decree-

holder. It seems to me, therefore, monstrous to invoke the principle of such decisions for the purpose of bringing about a result which in plain terms

deny to the decree-holder any recourse of remedy at all.

The second observation I should like to make is that the question must always be regarded as one of construction of the decree and of the

intention of the Court to be gathered from the terms of the decree. If a decree on a proper construction should be held to have made the costs

payable personally by the defendants, apart altogether from the securities or the sale of them, it seems to me there is not and could not be any rule

or principle of law saying that such a decree could not be executed according to its tenor. What the Courts of law have done in all oases which

have been cited is to construe the decree, and if in so construing the intention of the Court be not clear, to refer to the rules with regard to the

framing of the decrees for the purpose of arriving at the true intention of the Court in making the decree. At best it seems to me that such a

process, namely that of calling to aid the rules relating to the form of decrees to be passed for the purpose of construing the decree is itself a

process open to question. However that may be, it cannot possibly be pretended that apart from the construction of a decree there can be anything

in the rules relating to the frame or form which can require a decree to be understood in any way other than as it says.

The third observation I find necessary to advert to before proceeding to discuss the question with reference to the decided cases, is that, if, as a

matter of construction, the Court should come to the conclusion that according to the true intent of the decree the decree for costs is liable to be

executed personally, then, until and unless the decree itself comes to be altered no rule of law or procedure is ever an answer for such execution.

On these observations, it follows that if I should come to the conclusion on a fair and proper construction of the decree before me that

according to the true intention of the Court the decree for costs is liable to be executed, the mere fact or circumstance that the decree should not

have been made or framed in that particular manner or that under other circumstances the decree should be construed in a particular manner could

not possibly affect the question.

In this case I have no doubt whatever in my mind that having regard to the terms of the decree, the time at which the order for costs was made,

the tribunal by which it was so made and all the surrounding circumstances, the true meaning of the decree and the intention of the Court as

expressed in the terms thereof are clearly to the effect that the decree for costs now sought to be executed may. and should be executed personally

without any reference whatever to the mortgage security.

The order under reference is, so far as the material portion is concerned, in the following terms:

The decree of the lower Court be and the same is hereby confirmed and the appeal is dismissed. This Court doth further order and decree that the

appellants do pay respondent 1 Rs. 56-10-2 for her costs of appeal and Rs. 14V-7-9, her costs in the High Court in S.A. 1489 of 14 and do

bear their costs of the appeal in this Court.

This order for costs was inserted in the decree of the appellate Court by an order of amendment made on 5th March 1924 by the learned

District Judge. There is. nothing else in the decree. It is impossible to comprehend how a decree worded in these terms could possibly be regarded

as not executable personally. If in that decree there were any reference to any mortgage security or the sale thereof then indeed there might be

some room for doubt or for contending that the personal remedy should be postponed till after the sale of the securities. In the absence of any

reference in the decree itself to any securities or the sale thereof, it seems to me that to engraft on the decree the intention to postpone the payment

of the costs till after the sale of the securities would be absolutely unwarranted. As already stated this order for costs was made by way of

amendment on the 5th March 1924, and on, 21st March 1924 the present respondent applied for execution of the said order. Objection to the

grant of execution was taken on the ground among others that the original decree had been fully satisfied and satisfaction also recorded and that,

therefore, the order for costs was not executable and that the petitioner not having obtained a personal decree ''for execution against the appellants

herein after the sale of the mortgage security the order for costs could not be executed (personally.

Having regard to the nature of the objection above referred to it is clear that the first part of it was rather an objection to the amendment of the

decree alone and cannot possibly be regarded as an objection to the execution of the decree. As regards the latter part of the objection: it is

entirely a matter of construction and there is nothing in the decree to suggest that the clear and express intention that the defendant should be

personally liable for the costs awarded can be regarded as qualified or controlled by any other part of the decree. The circumstances, therefore,

being that the present decree for costs sought to be executed came to be made after the alleged satisfaction of the decree the condition that such

entering up satisfaction is an answer to the execution sought cannot be accepted. When the Court, after being informed of satisfaction having been

entered up of the original decree, deliberately amends the decree and makes an order against a party for the payment of costs without there being

any reference whatever to the mortgage securities, the obvious intention of the Court is that the amount must be paid personally and such a

construction alone should be forced or unreasonable which would have i the effect of importing into the decree a reference, which is not there, to

the mortgage security or the sale of it.

It now remains for me only to refer briefly to the cases that have been cited. The decision of the Full Bench of the Allahabad High Court in the

case Maqbul Fatima v. Lalta Prasad [1893] 20 All. 523, was relied upon by the appellants'' vakil. That case proceeded entirely on a consideration

and construction of the decree and the learned Judges expressed their view that the clause in the decree was never intended to be a direction for

the recovery of costs personally from the debtor. As I have already observed, cases of this kind have really no bearing on the question in this

appeal. It is impossible to regard that case as an authority for the position that even if the decree Should be construed as containing a personal

direction to pay, there is any rule or provision of law on which execution can be refused.

The decision in the case of Md. Ifti Khar Ullah v. Banke Lal AIR 1924 All. 104, only proceeded on a construction of the decree.

Similarly the cases of Raj Kumar Singh v. Sheo Narain Sahu [1908] 35 Cal. 431, and Kamalamma v. Narasimhacharlu [1907] 30 Mad. 464,

and Wahid Ali Vs. Durga Shankar and Others , are really to the same effect and proceeded on the same ground.

The decision in the case of Bulkee Bee v. Kaka Hajee Muhammad Umar Singh AIR 1926 Mad. 415, proceeded on the ground not only of

the decree having regard to the rules in the Procedure Code but also on the express ground that a previous application for the same relief had been

dismissed.

Before I conclude I may refer to the two cases cited by Mr. Srinivasan, on behalf of the respondent. In the case of Muhammad Sadiq v.

Ghouse Muhammad [1914] 11 A.L.J. 975, Mr. Justice Piggott, and in the case of Het Ram alias Udit Narain Vs. Dat Prasad Singh, , Mr. Justice

Sulaiman have held that an order for costs made by the Court under somewhat similar circumstances was executable personally without reference

to the mortgage security. I have already adverted to the circumstances under which I have come to the conclusion that the real intention of the

Court in making the order for costs now sought to be executed was that it should be paid personally by the appellant. In that view the appeal is

clearly not sustainable. It is, therefore, dismissed with costs.