SHANKAR BHATTA Vs. SHANKAR UPADHYA AND ORS.

JUDGEMENT

(1.) THIS second appeal is preferred from the decision in appeal of the learned District Judge of South Kanara, who reversed the learned District Munsiff of Kundapur, in a matter arising out of a mortgage suit. The appeal first came before Happell, J., whose attention was drawn to two decisions of this Court, Rajagopalaswami Naicken v. Palaniswami Chettiar, (1931) 62 M.L.J. 93 :, I.L.R. Mad. 332 and Sabapathi Pillai v. : (1913)25MLJ552 . Each is a decision of a Division Bench and they are considered to be in conflict. Both of them were referred to in Purushothama v. Raya Pandaram, (1944) 2 M.L.J. 178 :, I.L.R. 1945 Mad. 165. It was in consequence of the considered conflict that this appeal has been posted before a Full Bench. In my view reference to the authorities abovementioned is in no way required and this appeal can and should be decided simply upon the construction of the decree in the suit.

(2.) THE appeal arises out of a mortgage suit in which the present first respondent was the mortgagee. The mortgagors were two persons, brothers of the third defendant in the suit and the sole appellant before this Court. The mortgage was effected on the 1st of December, 1931 by which Rs. 500 was advanced secured upon the properties belonging to the joint family of which the mortgagors, the first and second defendants, and the present appellant, were members. The mortgage deed contained a personal covenant which is usually found in documents of that description. A mortgage suit was instituted in 1941. On the 5th March, 1941, there was a preliminary decree containing the usual provisions. The sum ascertained due in respect of principal, interest and costs, upto the date of the plaint, was Rs. 690 -6 -5. In pursuance of the decree the hypotheca was sold. It realised Rs. 650 and after deduction of the costs of the sale, the balance being set -off against the amount of the judgment debt, there still remained about Rs. 150 unsatisfied. The mortgagee made an application before the learned District Munsiff of Kundapur asking for a personal decree against all the judgment debtors in respect of the balance. This was made in pursuance to Order 34, Rule 6 of the Civil Procedure Code. The application was dismissed. On appeal by the mortgagee to the learned District Judge of South Kanara, the order of the learned District Munsiff was set aside and directions were given for a personal decree in respect of all the judgment -debtors, including the present appellant, for recovery of the undischarged balance. This appeal is preferred by the third defendant in the suit who as pointed out above, was not a mortgagor and who, it would follow, was in no way bound or obliged by the personal covenant contained in the mortgage deed.

(3.) CLAUSE 5 of the decree provides that if the money realised by the sale of the hypotheca should not be sufficient for payment in full of the amount payable to the mortgagee, he, the mortgagee, should be at liberty, where such remedy is open to him under the terms of the mortgage and is not barred by any law for the time being in force, to apply for a personal decree against the defendants for the amount of the balance. " The amount payable to the plaintiff," mentioned above, is the sum of Rs. 690 -6 -5 ascertained to be the sum due for principal, interest and costs. The mortgage deed was executed in 1931. The suit on the mortgage deed was not instituted until 1941. By that time, it is not disputed, any remedy by virtue of recourse to the personal covenant was barred. Clause 5 of the decree enables the mortgagee -respondent, in respect of any unpaid balance, to have recourse only to such remedy as is open to him under his mortgage which is not barred by any law for the time being in force. It must follow that since the remedy under the personal covenant is barred the mortgagee has nothing by reference to the mortgage deed, which can avail him to recover any balance. Clause 5 gives the mortgagee only a remedy, which is not barred, pursuant to the mortgage deed. He has now lost that remedy. So far as the appellant is concerned he has a further objection. He was not a party to the mortgage deed and is not under any obligation regarding the personal covenant contained in it and, consequently, in addition to the matters already pointed out, there cannot be any recourse against him.