Thirumalai Kandama K... v. Eastern Development ...

Seshagiri Aiyar, J.:— In order to appreciate the contention raised by the learned vakils in this case, it is necessary to state that a suit was brought in the Court of the Subordinate Judge at Tinnevelly by the second mortgagees against the mortgagor, defendant 1, and the first mortgagees, defendants 2 and 3. On appeal to the High Court from the judgment of the Subordinate Judge, a decree was passed by which the puisne mortgagees as well as the first mortgagees were declared entitled to apply for the sale of the mortgaged properties. An order absolute was passel by the Subordinate Judge; after that as the major portion of the properties mortgaged was in the Madura District, the decree was transferred for execution to that District. The present application was made by the transferee of the rights of mortgagees 1 for a personal decree. The District Judge passed an order in his favour. In appeal Mr. Rangachariar has taken three objections to the order. In the first place, he contends that as mortgagees 1 were not plaintiffs in the suit, their transferee is not entitled to obtain a personal decree in his favour. He relies upon the language of O. 34, R. 6, which says that the plaintiff may apply to the Court for passing a personal decree. The form given in the Code of Civil Procedure is also in favour of his contention, but in the present case, a decree was passed in favour of mortgagees 2 as well as of mortgagees 1. The High Court intended that both of them should have equal rights for applying for the other reliefs consequent upon the mortgage decree. Mr. Rangachariar referred us to R. 12. O. 34, The decree passed in this case does not conform to that provision.

2. It seems to me that the intention of the Court which passed the decree was to treat both mortgagees as plaintiffs and to enable them to obtain all the further reliefs in that capacity.

3. Therefore, I am unable to agree with Mr. Rangachariar in his first contention. I may also say that the decision in Govinda Taragan v. Veeran(1), to which Mr. Krishnaswami Aiyar drew our attention, supports the view I have taken in this case. Therefore, I overrule the first contention. On the second point, namely, that an application for a personal decree should have been made to the Subordinate Judge of Tinne velly and not to the Madura Court, I agree with the learned vakil's contention. Mr. Krishnaswami Aiyar laid considerable stress upon the fact that in this Court, beginning with Mallikarjunadu Setti…(Counter-Petitioner) v. Lingamurti Pantulu…(Petitioner) .*(2), the Uniform course of decisions has been to regard application for a personal decree as applications in execution. In a very recent decision reported as Mahammad Husain v. Abdul Kareem(3), Kumaraswami Sastriar, J. and myself followed the view taken in Mallikarjunadu Setti…(Counter-Petitioner) v. Lingamurti Pantulu…(Petitioner) .*. But, in my opinion this question is not concluded by what was decided either in Mallikarjunadu Setti…(Counter-Petitioner) v. Lingamurti Pantulu…(Petitioner) .* or in Mahammad Husain v. Abdul Kareem. The decree which was sent to the Madura Court was a decree for the sale of the mortgaged property; and it is a well established rule of law that an executing Court has no power to vary a decree.

4. It follows from this that the Madura Court has no power to pass a decree against properties other than those which have been mortgaged. The wording of S. 39, Cl. (c), and of Rr. 6 to 9, O. 21, shows that the executing Court is to have a limited jurisdiction in regard to the matter which is transmitted to it. The decision in Sree Krishna Doss v. Alambu Ammal(4) also shows that except upon the particular questions transmitted for execution, the Original Court retains full jurisdiction to deal with the subject-matter of the suit in all its stages. Reference may also be made to the decision in Swaminatha Ayyar v. Vaidyanatha Sastri(5). Mr. Krishnaswami Aiyar quoted an obiter dictum of Bhashyam Aiyangar, J., in Mallikarjunadu Setti…(Counter-Petitioner) v. Lingamurti Pantulu…(Petitioner) .*, to the effect that an application for a personal decree should be made to the Court which executes the decree. I have the highest respect for the learned Judge, but I am unable to accept his view that where a decree for the sale of immovable property has been transmitted to the executing Court, that Court will have power to pass a personal decree. Upon the third question whether a succession certificate is necessary, it is enough to say that defendant 2 and his sons seem to have been members of a joint Hindu family. In the view taken by the learned District Judge, the question as to whether a succession certificate was necessary if they were members of a joint family, did not arise for consideration. When application is made once again to the proper Court the question whether a succession certificate is necessary and whether the legal representatives claim by succession or by survivorship, may have to be considered by that Court. In the view I have taken upon the second question, the order of the learned District Judge must be reversed, and he should be directed to send the application for presentation to the proper Court. The appellant is entitled to his costs in this Court Costs in the lower Court will be provided for in the revised decree.

Bakewell, J.:— The proper decree to be passed in the suit is given in Appx. D, Form 8, which contains the provision that if the net proceeds of the sale are insufficient, the plaintiff shall beat liberty to apply for a personal decree. This provision amounts to an express reservation of the power of the Court to determine the extent of the personal liability of the mortgagor; but the omission of the provision does not, I think, preclude the Court from considering the question in the exercise of the power expressly conferred upon it by R. 6, O. 34. What, therefore, has been transferred for execution is merely the decree in the suit for the sale of the property, and it is a well settled principle that the executing Court cannot vary or import any provision into the decree which has been transferred to it for execution. In my opinion the power of passing a supplementary decree in the suit after judicial determination of the question of the liability of the mortgagor must be in the Court in which the mortgage suit was originally instituted. The question of personal liability and the necessity of a succession certificate will have to be determined by that Court, but I may point out that the preliminary decree for sale is in favour of both 2nd mortgagees as well as the 1st mortgagees, one period of redemption only being given. The mortgagee 1 would ordinarily he entitled to a decree that he should be redeemed by mortgagee 2 and upon the failure of the latter to redeem, he would be entitled to ask that the suit should be dismissed or that an order should be passed for the sale of the property. It cannot be doubted that such an order would constitute him decree-holder in the suit. I do not think that it can be deemed from the proceedings in the case that the Court intended by the form of the decree to vary any of the remedies of mortgagees 1. I agree that mortgagees 1 in this case should be treated as the plaintiffs in the suit within the meaning of O. 34, R. 6 of the CPC.

S.N/R.K

5. Appeal allowed.