RUTNESSUR SEIN Vs. JUSODA

JUDGEMENT

(1.) I think that this appeal must be allowed.

(2.) This is an action to recover certain mortgage money, and the only question in the case is whether the plaintiffs, in addition to recovering the mortgage money from the property, are entitled to recover the costs of the suit from the debtors personally, that is to say, whether they can get execution against any other property of theirs after the mortgage property has been exhausted. In my opinion the only question is, whether the decree, as given by the Judge who tried the case, intended to give the costs against the debtors personally, because I am clearly of opinion that, under Section 220 of the Code of Civil Procedure, the Judge had jurisdiction to decree the costs against the debtors personally if he thought fit to do so. Therefore, as I said before, the question is, whether upon a construction of the decree which was made by him we are to hold that he has decreed the costs against the debtors personally.

(3.) I think that he has. The decree proceeds to assess the amount which was due for principal and interest, and the amount due for costs, and then to make an order that the mortgagor shall pay the whole, that is to say, the debt and costs. By The terms of the security it is admitted that the Judge had no right under that security to give judgment against the debtors personally for the amount of the principal and interest, but by virtue of Section 220 he had jurisdiction to give judgment against them personally for the costs. Reading the decree as a whole it declares, as I said before, that this man shall pay the whole of both sums of money. A declaration that he shall pay the whole means that he shall pay it out of any property of his ; the liability to pay is not limited to any particular property.