RAJAGOPALACHAIAR Vs. THIAGARAYA MUDALI

JUDGEMENT

(1.) The suit out of which this second appeal arises was for the enforcement of Ex. B on the basis that it purported to be a hypothecation bond for Rs. 300 executed by the predecessor-in-interest of the appellant in favour of the respondent on the 5th of July 1913. Personal relief was also claimed as usual against the assets of the deceased mortgagor in the hands of the appellant for any balance that might remain due after the sale of the hypotheca. It would appear that the respondent had a mortgage of a later date, 29th March 1914 over the identical hypotheca and had obtained decree on it in O.S. No. 88 of 1919 without making any reference to the earlier mortgage, which is the basis of this suit. Exhibit if is a copy of the plaint in that suit. The appellant resisted the present suit on four main grounds, viz., (1) that the bond sued on was not genuine; (2) that it was ineffective as a mortgage for want of proper attestation; (3) that the suit was barred by res judicata as the plaint mortgage had not been reserved in the earlier suit; and (4) that personal relief could not be granted as the bond did not contain a covenant to pay.

(2.) The District Munsif found that the bond was genuine, but he held that no mortgage-decree could be given as it had not been duly attested according to law and thus proved inefficacious as a mortgage: He declined to give any personal relief on the ground that the bond did not contain any covenant to pay. He added that there was no force in the plea of res judicata as it was not obligatory to have set up the plaint bond in the earlier suit. However, as a result of his findings that the bond was not enforceable either personally or as a mortgage, he dismissed the suit. In appeal, the learned District Judge also held that the bond was bad as a mortgage, but, differing from the District Munsif on the question whether it contained a personal covenant, he was of opinion that the bond contained a covenant to pay and so granted a decree against the assets of the deceased executant in the hands of the appellant. Apparently in the view that he took of the plaint bond, viz., that it did not constitute a valid mortgage, he did not consider it necessary to examine the question whether the failure to reserve the claim in the" earlier suit operated as res judicata; at any rate, he left the question untouched.

(3.) In second appeal two points have been, argued on behalf of the appellant; (1) that the suit bond does not contain a covenant to pay and (2) that the suit is barred by res judicata by reason of the respondent s failure to get up or reserve the claim in the earlier suit, O.S. No. 88 of 1919. As regards the first point, I am of opinion that the learned District Judge is right in his view as regards the personal covenant in the bond. It would serve no useful purpose to examine the various cases brought to my notice, in view of the fact that the answer to the question whether a mortgagor binds himself personally to re-pay the loan or not "must depend upon the construction of the mortgage-bond in each case and the intention of the parties as evidenced by the circumstances" per Mookerji, J., in Ghasiram v. Raja Mohan Bikram 6 C.L.J. 639. The plaint bond is said to be similar in terms to Ex. A. A perusal of it leaves no room for doubt that it contains a covenant to re-pay. Strong reliance was placed by the appellant on a decision in Narotam Das v. Sheo Pargash Singh 10 C. 740 : 11 I.A. 83 : 8 Ind. Jur. 275 : 4 Sar. P.C.J. 522; Rafique and Jackson s P.C. No. 78 : 5 Ind. Dec. (N.S.) 496 (P.C.) but in the present case there is an express and unqualified recital for payment and redemption of the bond. The transaction is also referred to as a loan which implies a promise to pay and creates a personal obligation. In the clause providing for recovery by suit it is expressly stated that the suit should be against the executant. I have, therefore, no hesitation in upholding the finding of the learned District Judge to the effect that the bond contains a personal covenant to re-pay. The law is well-settled that such a personal covenant could be enforced, even though it is embodied in a bond purporting to be a mortgage but which fails to operate as such.