KARTHIYANI AMMA Vs. MEEMIKUNJU HAJI

JUDGEMENT

(1.) This is a matter arising in execution. Plaintiff-decree holder is the 2nd appellant. The decree in the suit was on the basis of a simple mortgage. Execution was taken out by the decree holder and on different occasions the judgment debtor paid several sums in part satisfaction of the amount under the decree. When the sale came up on 3.2.1122 the judgement debtor deposited in court Rs. 285-11-6 and the sale was stopped. Afterwards on 9-2-1122 he filed C.M.P. No. 130 of 1122 praying that the amount deposited in court may be paid to plaintiff and that satisfaction of decree may be entered. This application was opposed by the decree holder on the ground that she has to get a further sum of Rs. 94-8-8 being the amount that she had to pay by way of tax of the mortgaged property and the interest thereon. It was also contended by the decree holder that this amount was included in the previous execution petitions filed by her and that in so far as no objections were then raised by the judgment debtor, he is not entitled now to raise any objection regarding the payment of this amount to her. The court of first instance repelled the contention of the decree holder and ordered the satisfaction of the decree. The lower appellate court confirmed this order.

(2.) It is argued before us that under O.34, R.7 of the Cochin Civil Procedure Code, the decree holder is entitled to get these amounts in execution of the decree. No doubt, O.34, R.7 of the Cochin Civil Procedure Code provides that "In finally adjusting the amount to be paid to a mortgagee in case of a foreclosure, sale or redemption the court shall, unless the conduct of the mortgagee has been such as to disentitle him to costs, add to the mortgage money such costs of the suit and other costs, charges and expenses as have been properly incurred by him since the decree for foreclosure, sale or redemption up to the time of actual payment." But even assuming that expenses alleged to have been incurred by the decree holder comes within the meaning of the expression 'other costs, charges and expenses as have been properly incurred by the decree holder since the decree' used in O. 34 of the R. 7, the question is whether it is open to the decree holder to claim such amounts in execution without any provision therefore in the decree.

(3.) O.34, R.3 provides the manner in which the decree in a case like the present has to be drawn up. R.3(i) says that in a suit for sale, if the plaintiff succeeds the court shall pass a decree to the effect mentioned in Cls. (a) and (b)(i) of R.2(1). R.2(1)(b) provides that the court shall pass a decree directing that the defendant shall pay into court future interest and also subsequent costs as are mentioned in R. 7 of O.34 in addition to the amounts mentioned in O.34, R.2(1). It is clear from this that provision has to be made in the decree itself for recovery of 'any other costs, charges and expenses after the decree', mentioned in R. 7 of O.34. The form of the decree for sale which is extracted in the judgment of the learned Munsiff is also in conformity with the above provision. If the decree has not been properly drawn up so as to include costs, charges or expenses incurred since the decree as mentioned in R.7 of O.34, the proper remedy of the party is to get the decree amended to bring it in conformity with the provisions of O. 34, R. 2 and not to agitate that matter in execution without any provision therefore in the decree.