Mukerji and Bennet, JJ.:— This is a plaintiff's appeal and it has arisen out of the following facts. The appellant Raghukul Tilak sold certain properties of his to the predecessors, in title of the defendants respondents for a sum of Rs. 26,000 on the 12th of September, 1919. The plaintiff received a sum of Rs. 8,000 in cash for the same and left the balance of the purchase money with the vendees for payment to certain creditors of his. Among these creditors was one Jamna Das, with whom certain properties not sold to the vendees had, been mortgaged to secure the loan. The purchasers did not pay Jamna Das and the result was that Jamna Das brought a suit for sale of the property mortgaged to him, in 1921 and obtained a decree against the plaintiff for recovery of Rs. 8,927 mortgage money, and costs, in all Rs. 9,935, Thereupon the plaintiff brought the suit out of which these proceedings have arisen, viz., suit No. 656 of 1921, for recovery from the defendants of the sum of Rs. 9,935 for which a decree had been obtained by Jamna Das. The learned Subordinate Judge, before whom the suit came, divided the claim, into two portions. He split it up in this way. He granted a decree for sale, by enforcement of the vendor's lien, to recover Rs. 9,196-4-0 only. For the balance, viz., Rs. 738-12-0, he granted a personal decree against the defendants. The plaintiff recovered, the sum of Rs. 738-12-0 personally from the defendants and then proceeded to sell the property sold to the defendants, to realise the remaining sum. The property had already been subject to a prior mortgage and as the defendants had not paid that mortgage also, the property, when sold, fetched a very small sum of money, namely Rs. 2,000. The property was purchased by the plaintiff, but the prior mortgagees have resold the property, with the result that the plaintiff has lost the sum of Rs. 2,000 which he had offered for the property.
After all these proceedings, the plaintiff came into court with an application purporting to have been made under order XXXIV, rule 6, of the Civil Procedure Code. His case was that the balance of the purchase money was still due to him and was still recoverable by him from the defendants and a personal decree should be passed against the defendants.
The application was resisted by the defendants. For the plaintiff it was contended that his right to apply for such a personal decree was res judicata in his favour, and for the defendants it was contended, that order XXXIV, rule 6, bad no application to the facts of the case and that, apart from the lien granted by law to the plaintiff, the plaintiff had no right to recover the money personally from the defendants.
The learned Subordinate Judge held that the matter was not res judicata, but he further held that the plaintiff was not entitled to make the application under order XXXIV, rule 6, of the Civil Procedure Code. The points that we have to determine in appeal are the very two points that were before the learned Subordinate Judge.
The question of res judicata arises in this way. The plaintiff when he brought his suit, appended the following prayer as relief (b) to his plaint:—“If the proceeds of the sale be insufficient to pay up the decretal amount due to the plaintiff at the time, he may he authorized to apply for a decree for the balance. Exception was taken on behalf of the defendants to the reliefs sought by the plaintiff. But nothing specifically, was said about the particular relief which we have quoted above. No issue was framed as to whether the plaintiff would be entitled or not to recover personally from the defendants the balance, if there remained a balance, after the sale of the property over which he had a charge. The learned Subordinate Judge who tried the case does not mention even the existence, of this relief in his judgment. He contented himself with passing a decree under order XXXIV, rule 4, of the Civil Procedure Code. The decree that was framed followed the form No. 8, Appendix D to schedule 1 and gave the plaintiff liberty to apply for a personal decree for the amount of the balance.
On behalf of the appellant it has been contended that this decree having become final, the plaintiff's right to apply under order XXXIV, rule 6, has been recognized once for all and the decree cannot be departed from.
We are of opinion that section 11 of the Civil Procedure Code does not in terms apply to this case. The present proceedings are only a part of the original proceedings and it cannot be said that the matter was decided either specifically or by implication in a previous suit. The rule of res judicata has been applied to subsequent proceedings when the points raised in the subsequent proceedings were raised in the earlier proceedings and were specifically decided. In the circumstances we do not think that we are in a position to apply the rule of res judicata and to hold that the plaintiff's right has been settled once for all and in his favour. As already indicated, the matter was never considered by the court at all and it is pure accident that the whole of the form No. 8, Appendix D to schedule 1, has been copied in the decree.
The next question is whether the plaintiff is entitled to make an application under order XXXIV, rule 6, of the Civil Procedure Code. It appears to us that the question whether a charge-holder has a personal remedy against the person over whose property he holds a charge is a matter of contract. In the case of a simple mortgage, it has been recognized that in the absence of a contract to the contrary, a simple mortgage carries a personal liability. Where there is a simple mortgage, there is a presumption that there is a personal, liability, and unless the personal liability is excluded by an express contract it will exist. No such rule applies to the case of a charge. A charge is defined in section 100 of the Transfer of Property Act and the important portion is as follows:—“Where immovable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property…” It is clear therefore that by the definition of charge no personal liability is created. But where a charge is the result of a contract, there may also be a personal remedy to be found. But every case must depend on its own facts.
In this case the learned counsel for the appellant has pointed out to us that the sale deed contains a personal liability to pay the amount of the consideration money. But, as we read the covenant, we understand that the covenant was meant to be a covenant of indemnity where the vendor has been damnified. It is not a covenant which could be taken as a part and parcel of the vendor's lien.
There is, however, a provision in the Transfer of Property Act itself by which the vendee is held personally liable for the purchase money, apart from the liability imposed on the property purchased by him, where title has passed to him as the result of the purchase. Section 55, sub-section (4), clause (b), relates to the creation of a charge. The same section, sub-section (5), clause (b), relates to the personal liability. It runs as follows:—“The buyer is bound to pay or tender,” at the time and place of completing the sale, the purchase money to the seller or such person as he directs …” It is the duty under the statute which is quoted, of the vendee to pay down the purchase money to the vendor or to such person as the vendor nominates. The fact that the vendor nominates a third person to receive the money does not mean that the vendee's liability to pay to the vendor ceased. The third person receives and gives a discharge to the vendee on behalf of the vendor. But if the third person does not receive money, the vendee's liability does not cease. The personal liability of the vendee therefore is also a creation of the statute. In the case of Uttam Ishlok Rai v. Ram Narain Rai(1) the existence of this personal liability was affirmed by Mr. Justice Banerji as one of the two learned Judges who heard the appeal in the first instance; see Uttam Ishlok v. Phulman Rai(2). Although, in the Letters Patent appeal against the judgment, this question of the existence of personal liability was not specifically decided, the learned Judges of the Court of appeal expressed the opinion that if they had to decide the point they would have agreed with Mr. Justice Banerji. Thus we have in this Court an authority for the proposition that apart from the vendor's lien, there is a personal remedy against the vendee and in favour of the vendor.
No question of limitation having been raised, it seems to us to be clear that the plaintiff is entitled to succeed.
As to how far order XXXIV, rule 6, of the Civil Procedure Code is applicable to a claim arising under a suit for enforcement of the charge alone the point Goes not arise for determination here and for the simple reason that the plaintiff did make a claim for a personal remedy in this very suit, and although it was not adjudicated on then, it cannot be said that he omitted to make a claim.
In the result, we allow the appear, set aside the decree of the court below and we make, a personal decree against the defendants except in so far that none of them will be liable to be arrested in execution of the decree; the reason is that the only adult purchaser is dead and the remaining purchasers were minors, at the date of the purchase. The appellant will have his costs in this Court and in the court below.