The Rajah of Kalahasti vs Rajah Kumara Venkata Perumal Raj Bahadur Varu, Minor by guardian Mr. W.A. Vardachariar and Another

Abdur Rahim, J.—There can be no doubt that the appellant''s contention, that the decree in question is a decree for payment of money, must

prevail. The decree directs ""that the defendant do pay plaintiffs Rs. 91,288-9-11 with interest at one per cent, per mensem from date of plaint (7th

November 1884) to date of payment if payment be made within six months from this date, viz., on or before 17th June 1885; that if payment be

not made within six months from this date (17th December 1884) then up to the 17th June 1885 from date of plaint interest shall be at one per

cent, per mensem, and thereafter at 1/2 per cent, per mensem; that the plaintiffs shall have their costs with interest at 1/2 per cent, per mensem

from this date and that the property mortgaged be held liable to this decree."" It was passed in 1884 after the passing of the Transfer of Property

Act. Under the Act the proper form of a mortgage decree is that given in Form No. 75, Schedule D, of the Civil Procedure Code. The. decree

which we are asked to interpret is not in that form, and the question is what is the proper meaning of the decree. It seems to us that the plain

meaning of the decree is that the defendant shall be personally liable for the amount of the decree, and also that the property mortgaged shall be

sold in satisfaction of the decree.

We do not think that in construing this decree we can derive much help from the cases in which decrees couched in different language have been

construed on previous occasions. A direction that the defendant do pay a certain sum of money, prima facie, imposes a personal liability, though no

doubt the words are not conclusive of the question. It may be that other clauses of the decree, if read together with such direction, might show that

all that was meant by what is prima facie a direction was to declare the amount for which the defendant was liable, and the only immediate remedy

intended to be given was against the mortgaged property. But it seems to be impossible to put such a construction on the decree with which we are

concerned in this case. The words clearly give concurrent remedies against the judgment-debtor personally and the mortgaged properties, and the

language does not, in our opinion, admit of our saying that the only remedy given is against the mortgaged properties. Mr. T. Rangachariar argues

that we must read the decree in the light of the provisions of the Transfer of Property Act. If there was anything ambiguous about the decree, no

doubt Mr. Rangachariar''s contention would have force, but such a principle of interpretation has no application where the decree in dispute is

worded in perfectly clear language and there is no difficulty in ascertaining what was meant.

There is yet another contention of Mr. Rangachariar which remains to be noticed, viz., that the decree not being in accordance with the

provisions of the Transfer of Property Act is a nullity and cannot be given effect to in execution. This argument, in our opinion, is absolutely

untenable. No daubt the decree is not in accordance with the Transfer of Property Act, which contemplates that under a proper decree for sale the

hypothecated property ought to be ordered to be sold first, and if the proceeds be insufficient a further order should be obtained for sale of the

other properties of the judgment-debtor. The present decree gives concurrent remedies against the mortgaged property and the judgment-debtor

personally, The defendant ought to have got the decree corrected in appeal or otherwise, if tie thought he was prejudiced by the form of the

decree; but he was content with the decree as passed. It is too late for him to complain of it now, when the decree is sought to be enforced against

him. It was pointed out in Abbakki v. Krisknaya ILR (1909) M. 534 that a decree such as in the present case, which is not in conformity with the

Transfer of Property Act, cannot be said to be null and void. It is only irregular in form, and, if allowed to remain unimpeached, cannot be called in

question in execution.

The decree of the District Court must be reversed and the case will be remitted to it for disposal according to law. The respondent will bear the

costs of the appeal.

Spencer, J.

I concur with my learned brother. As at first I felt some doubt, I have taken time to examine the decisions cited at the bar. Amongst them I find

that of Lalla Tirhani Sahai v. Lalla Hamuk Narain ILR (1893) C. 27 is to some extent in respondent''s favour, but in Dinanath Mitra v. Bejoy

Krishna Doss (1903) 7 C.W.N. 744, Romachi Kather v. Pakker ILR (1896) M. 107, Muthia Kone v. Kumarasawmi Pillai (1904) 14 M.L.J. 6,

Sivasubramania Naicker v. Lakshmana Chettiar (1902) C.M.A. 168, Atmakumari Row v. Mohan Ram, decrees containing the words ""the

defendant do pay to the plaintiff"" have been construed as money decrees executable against the person of the mortgagor or against his other

property not subject to the mortgage. In the decree under our consideration we have in addition the words, ""and that the property mortgaged be

held liable to this decree,"" which seems to imply that two remedies were intended to be provided in the decree, one a personal and the other a

decree for the sale of the mortgaged property. In Kamachamma v. Komandur Narasimhacharlu ILR (1907) M. 464, this Court had before it a

petition for the amendment of a decree so as to bring it in comformity with the judgment. The court was thus in a position to decide whether a

decree tinder Section 88 of the transfer of Property Act should contain an order against the defendants personally to pay the costs. Also the

judgment was before the court which dealt with the petition.

Here we have only to consider what was intended to be the effect 6f the original decree and to enforce it accordingly, seeing that no attempt has

been made at any time to correct it so far as it does not conform to the form of decrees given in Schedule a of the CPC and that on its face it does

not appear to be a decree incapable of execution. We have not the light of the pleadings and the judgment to read it by. As it stands I cannot

accede to Mr. Rangachariar''s contention that it was enforced solely against the mortgaged property. The appeal must be allowed with costs and

the case sent back for disposal.