Suri Markendeya Sastri v. Gottumukkala Sobhanadhracharyulu

We cannot agree with the Subordinate Judge in his opinion that the mortgage-deed in the case contains no personal covenant to pay. The words “we shall discharge the debt” makes this a stronger case than that in Abbakke Heggadthi v. Kinhiamma Shetty where it was held that the personal liability of the mortgagor would ordinarily exist in the absence of a specific contract to the contrary.

The Subordinate Judge would have been on safer ground if he had based his refusal on the second ground mentioned in his judgment, namely that the decree-holder was entitled to proceed against the person of the defendants under O. 34, R. 6, only after the proceeds of the sale of the mortgaged property proved to be insufficient to pay the amount due (O. 34, R. 6, Civil Procedure Code).

But the District Munsifs decree did not conform to the form for mortgage decrees printed in Appendix D, inasmuch as it did not expressly reserve this right, and the Subordinate Judge having recognised that according to that form the right should have been reserved, should have provided accordingly in his decree.

We must reverse the decree of the Lower Appellate Court and direct the addition of cl. 3 of form 4 of Appendix D to be made to the decree of the Court of First Instance.

Appellant will get his costs of the appeal in this Court. In the Lower Appellate Court each party will bear his own costs.

S. S.Appeal allowed.