BANKIMCHANDRA SHIVSHANKER Vs. VISHNUPRASAD MAGANLAL VAIDYA

JUDGEMENT

(1.) The plaintiffs had filed a suit being civil suit No. 194 of 1966 in the court of the Civil Judge Senior Division Bhuj for the recovery of the amount due on the mortgage by sale of the mortgaged property. According to the plaintiffs the mortgage deed had been executed by one Metha Maganlal Himatram in favour of their grand-father. The defendant having died during the pendency of the suit his legal representatives were brought on record in due course. The defendants raised two preliminary objections in the trial court and they were that the court had no jurisdiction to try the suit and that the suit was not maintainable in view of the provisions of sec. 214 of the Indian Succession Act 1925 (hereinafter referred to as the Act) as the plaintiffs who were claiming under the will of the deceased mortgagee had not produced a probate of the will as contemplated by that section. As regards the first objection the learned trial Judge has held that he has jurisdiction to try the suit. However he upheld the second objection and gave time to the plaintiffs to obtain probate as contemplated by sec. 214 of the Act. Being aggrieved by the above order the plaintiffs have come in revision.

(2.) Relying on the decision in the case of Nanchand Khemchand Gujar v. Yenawa (I.L.R. 28 Bombay 630) the learned Civil Judge has taken the view that the provisions of sec. 214 of the Act are not applicable to a suit on mortgage but according to him as the plaintiffs have claimed also a personal decree against the defendants the suit was not maintainable unless the plaintiffs obtained a probate of the will.

(3.) Now sec. 214(13)(a)(b)(i) of the Act which is relevant for our purpose provides (1) No court shall-(a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof or (b) proceed upon an application of person claiming to be so entitled to execute against such a debtor a decree or order for the payment of his debt except on the production by the person so claiming of (i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased . Thus according to sec. 214 of the Act no decree can be passed against a debtor of a deceased person for payment of his debt nor can any such decree be executed against such debtor except on production by the person concerned of a probate etc. In the suit under consideration however the question of passing a personal decree against the mortgagor would arise at a later stage as would be evident from the provisions of Order 34 of the Civil Procedure Code. According to rule 4 of Order 34 of the Code in a suit for sale like the present one in the first instance a preliminary decree would be passed. If the defendant fails to pay the amount due under the mortgage within the time fixed for the purpose by the court in the preliminary decree the plaintiff will have to apply for a final decree for the sale of the mortgaged property as contemplated by rule 5 of Order 34 The question of passing a decree for the recovery of the dues from the other properties of the mortgagor would arise only in case the net proceeds of the sate held under rule 5 are found insufficient to pay the amount due under the mortgage and the plaintiff makes an application for recovery of the balance under rule 6 of the above order. It will thus appear that the court has to first pass a preliminary decree as contemplated by rule 4 and that in the event of failure on the part of the mortgagor to pay the amount due under the preliminary decree a final decree for sale of the mortgaged property will be passed. Thus looking to the scheme of Order 34 of the Civil Procedure Code a decree under rule 4 or 5 thereof cannot be treated as a decree against a debtor for payment of his debt within the meaning of sec. 214 of the Act and in that view of the matter the want of production of probate etc. would not be a bar for passing decrees under rules 4 and 5 of Order 34.