USAFALI IBRAHIM Vs. FALZULLABHAI SHEIKH MAHOMEDBHAI

JUDGEMENT

(1.) The point for decision is whether a decree passed in the terms of an award, resulting on a reference of the differences between the parties, without the intervention of the Court, can be executed personally against the mortgagor, where the award and therefore the decree, only provides specifically for satisfaction of the mortgage amount out of the mortgaged property.

(2.) The facts are implied in the above statement of the point for decision, but will bear stating more precisely. The advance secured by the mortgage, which was executed on January 7, 1920 was Rs. 14,999 and the two original mortgagees assigned their rights under the mortgage to the plaintiff on August 31, 1923. The disputes arose between these assignees and the original mortgagor, and were referred for the decision of Mr. Bhagubhai Chhabildas on November 23, 1924. The award was made on December 2, 1924. An application to fib the award was made on January 9, 1925, and a decree was passed in its terms on January 12, 1925. This is the decree now in question. Execution proceedings followed on the decree and the mortgaged property has been sold and realized Rs. 8,517. There is, therefore, a deficit of Rs. 9,469-6-5 which the decree-holder seeks to recover personally from the judgment-debtor.

(3.) There has, however, been an intervening proceeding. The decree-holder had applied for a final decree, and one was made on April 6, 1925, and this so-called final decree contains a Clause to the following effect:- If there is any deficit after doing that (i.e., realizing the amount due out of the mortgage security) plaintiff is at liberty to apply under Order 34 Rule 6. No order as to costs of this application.