RAJAH OF KALAHASTI Vs. RAJAH KUMARA VENKATA PERUMAL RAJ BAHADUR VARU, MINOR BY GUARDIAN MRWAVARDACHARIAR

JUDGEMENT

(1.) There can be no doubt that the appellant s contention, that the decree in question is a decree for payment of money, must prevail. The decree directs "that the defendant do pay plaintiffs Rs. 91,288-9-11 with interest at one per cent, per mensem from date of plaint (7th November 1884) to date of payment if payment be made within six months from this date, viz., on or before 17th June 1885; that if payment be not made within six months from this date (17th December 1884) then up to the 17th June 1885 from date of plaint interest shall be at one per cent, per mensem, and thereafter at 1/2 per cent, per mensem; that the plaintiffs shall have their costs with interest at 1/2 per cent, per mensem from this date and that the property mortgaged be held liable to this decree." It was passed in 1884 after the passing of the Transfer of Property Act. Under the Act the proper form of a mortgage decree is that given in Form No. 75, Schedule D, of the Civil Procedure Code. The. decree which we are asked to interpret is not in that form, and the question is what is the proper meaning of the decree. It seems to us that the plain meaning of the decree is that the defendant shall be personally liable for the amount of the decree, and also that the property mortgaged shall be sold in satisfaction of the decree.

(2.) We do not think that in construing this decree we can derive much help from the cases in which decrees couched in different language have been construed on previous occasions. A direction that the defendant do pay a certain sum of money, prima facie, imposes a personal liability, though no doubt the words are not conclusive of the question. It may be that other clauses of the decree, if read together with such direction, might show that all that was meant by what is prima facie a direction was to declare the amount for which the defendant was liable, and the only immediate remedy intended to be given was against the mortgaged property. But it seems to be impossible to put such a construction on the decree with which we are concerned in this case. The words clearly give concurrent remedies against the judgment-debtor personally and the mortgaged properties, and the language does not, in our opinion, admit of our saying that the only remedy given is against the mortgaged properties. Mr. T. Rangachariar argues that we must read the decree in the light of the provisions of the Transfer of Property Act. If there was anything ambiguous about the decree, no doubt Mr. Rangachariar s contention would have force, but such a principle of interpretation has no application where the decree in dispute is worded in perfectly clear language and there is no difficulty in ascertaining what was meant.

(3.) There is yet another contention of Mr. Rangachariar which remains to be noticed, viz., that the decree not being in accordance with the provisions of the Transfer of Property Act is a nullity and cannot be given effect to in execution. This argument, in our opinion, is absolutely untenable. No daubt the decree is not in accordance with the Transfer of Property Act, which contemplates that under a proper decree for sale the hypothecated property ought to be ordered to be sold first, and if the proceeds be insufficient a further order should be obtained for sale of the other properties of the judgment-debtor. The present decree gives concurrent remedies against the mortgaged property and the judgment-debtor personally, The defendant ought to have got the decree corrected in appeal or otherwise, if tie thought he was prejudiced by the form of the decree; but he was content with the decree as passed. It is too late for him to complain of it now, when the decree is sought to be enforced against him. It was pointed out in Abbakki v. Krisknaya (1909) I.L.R. 32M. 534 that a decree such as in the present case, which is not in conformity with the Transfer of Property Act, cannot be said to be null and void. It is only irregular in form, and, if allowed to remain unimpeached, cannot be called in question in execution.