GURAPPA GURUSHIDDAPPA NEELI Vs. AMARANGJI VANICHAND

JUDGEMENT

(1.) I submit that where in the course of a suit a charge is created, such charge negatives personal liability. Secondly, by expressly mentioning a particular remedy granted by a decree the other reliefs are denied: expressio unius exclush alterius. Thirdly, you cannot divorce a decree from the plaint, for Section 11, expln. V, of the Civil Procedure Code, provides: "Any relief claimed in the plaint, which is not expressly granted by the decree, shall, .... be deemed to have been refused." Fourthly, the principle of Order XXXIV of the Code applies to the present case where charge is created for the first time by the decree itself. On the last point there is a divergence of opinion among Judges of our Court. Further question is whether Order XXXIV applies to moveables in principle.

(2.) IN his second edition of the Transfer of Property Act, 1882, Sir Dinshah Mulla says (p. 547): "When a charge is created by act of parties the specification of the particular fund or property negatives a personal liability. The remedy of the holder of the charge is against the property charged only." The decree in the present case, being one passed in terms of a compromise, is on the footing of a contract between two parties. The judgment-debtor has made a concession by admitting the whole amount claimed and has therefore consented to the creation of a charge. Hence probably the creditor agreed to be content with the creation of the charge only. Even if the decree is so construed, the darkhast must be dismissed. The parties should be held to the contract.

(3.) SHAH J. in Ambalal v. Narayan (1919) 21 Bom. L.R. 698. was of opinion (p. 705): Order XXXIV, Rule 14, meant "that the decree should relate to the payment of money in satisfaction of a claim arising under the mortgage, i.e., a mortgage independent of the decree. It can have no application where the charge or the mortgage is created by the decree and where the direction as to payment of money is in no sense in respect of a claim arising under the charge or the mortgage." This case can be distinguished on three grounds: (1) liberty to apply was reserved in that decree; (2) decree was merely declaratory; and (3) in the present case, the charge was created prior to the decree by a compromise.