JANARDAN SHANKAR Vs. KRISHNAJI BALKRISHNA BHATE

JUDGEMENT

(1.) A decree was passed on the 23rd August 1910" in a mortgage suit filed by the plaintiff whereby it was directed that "the defendants should pay to the plaintiff Rs. 2,754-9-2 as claimed, costs of the suit, and interest on the principal sum of Rs. 2,4000 from the date of the suit up to this day at the rate of 6 per cent, per annum whatever the sum might come to." The same was directed to be paid in the following manner:- Defendants should pay Rs. 300 each year to the plaintiff. Plaintiff should bring the same to account in the following way...In this way the defendants should pay the whole sum in instalments by paying Rs. 300 per year to the plaintiff as above until payment of the sum in full. The property in suit should remain in the possession of the defendants. Until payment of the whole mortgage amount the whole of the sum should be a charge on the mortgaged property. In default of the payment of any two instalments, the plaintiff should recover the whole of the amount then due including all the future instalments by sale of the mortgaged property through Court.

(2.) The defendants fell into arrears, and the plaintiff became entitled to execute. In his Darkhast he claimed to be entitled to execute not only by sale of the mortgaged property, but also by attaching other property belonging to the defendants. This claim was allowed by the lower Courts, and on appeal before Mr. Justice Shah the decisions of the lower Courts were confirmed. I fail to see how this decree differs in any respect from an ordinary mortgage decree, which no doubt directs money to be paid by the mortgagor, but also directs that in default of payment in the prescribed manner, or within the prescribed period, the mortgaged property may be put up for sale. Then Order XXXIV, Rule 6, says: Where the net proceeds of any such, sale are found to be insufficient to pay the amount due to the plaintiff, if the balance is legally recoverable from tie defendant otherwise than out of the property sold, the Court may pass a decree for such amount.

(3.) That contemplates that if the mortgaged property has been sold, and there is a deficiency, then the Court will proceed to consider whether the balance should be recovered personally from the mortgagor, and if it thinks it should, then it passes a final decree personally against the mortgagor for the amount of the deficiency. Such a decree will be passed in the original suit, so that a fresh suit need not be filed. But it must follow that the question whether the mortgagee can recover the amount personv ally from the defendant, and not from the mortgaged property, is subject to entirely different considerations than those which guide the Courts in passing a decree for recovery of the amount charged on the property mortgaged. It seems clear to me that there must be a decree personally made against the mortgagor before it can be executed against property other than the mortgaged property. The decree in this case cannot be said to be a personal decree merely because it directs that the defendants should pay the amount. It directs specifically how the plaintiff shall recover the decretal amount if default is made in payment, and it says nothing a bout what shall happen supposing the mortgaged property when sold is insufficient to pay the mortgage debt. The plaintiff has endeavoured to avoid the difficulties which may lie in his path if he followed the strict procedure, by proceeding in execution and asking that, if the mortgaged property when sold is insufficient, then some other property should be sold. In my opinion the mortgagee cannot follow that course. Therefore with all due respect to the judgment of Mr. Justice Shah, I think that the order of the trial Court cannot be supported, and that so far as it relates to property other than the mortgaged property, it must be set aside. The appellant will be entitled to his costs throughout. Heaton, J.