CHERRIYONI ALIAS AVINHAT MOOTHAVAR STYLED BAYYORNALA KOTHE RAMAN Vs. NHERA POYILIL PARKUM MINGER POCKER

JUDGEMENT

(1.) The first defendant, a Stani, executed a hypothecation bond in favor of the plaintiff for a debt borrowed for the purpose of paying arrears of Government revenue on properties belonging to the Stanom. The document, Exhibit A, after setting out the purpose for which the loan was taken says. " I shall pay you the said sum of Rs. 200 before 30th Makaram 1078 next and receive back this deed. If I fail to pay the amount at the prescribed time I agree to your realising the principal with interest accruing at 18 per cent, a year from the prescribed time so long as it remains unpaid, by causing sale of my jenmatn and all other rights on the properties hypothecated and to pay deficit, if any, in person * * " It will be observed that the parties depart from the phraseology ordinarily employed in hypothecation documents, that the amount may be recovered both from the property hypothecated and from the debtor personally and provide that the debt is to be recovered by sale of the hypotheca in the first instance, and only the deficit, if any, from the debtor. The debt was borrowed for a purpose which would justify charging it on Stanom property and the purpose is recited in the document.

(2.) There is, no doubt, a general covenant to pay the debt within the time specified which would ordinarily render the covenantor personally liable, but the specific stipulation relating to the creditor s right in case of default shows, in our opinion, that the plaintiff was bound to proceed against the hypotheca before claiming a personal decree against the first defendant. In the plaint he asked for the recovery of the debt by sale of the mortgaged property but subsequently he gave up that claim. We must hold that he is not entitled to a personal decree against the first defendant. The case of Madappa v. Ramakrishna Narayan (1911) I.L.R. 35 B. 327, relied on by Mr. Madhavan Nair, affords him no help. The Privy Council in that case merely held, on the construction of a particular document, that there was a covenant to pay interest for a disputed period.

(3.) Mr. Madhavan Nair also raised a preliminary objection that no second appeal lies in this case as the prayer for sale of the hypotheca was withdrawn and the amount sued for is less than Rs.500. But it is the nature of the suit as originally framed that determines the question whether a second appeal is properly maintainable. We reverse the decrees of the courts below and dismiss the second appeal with costs throughout.