RAJA BENOY KRISHNA DEB Vs. DEBENDRA KRISHNA NANDY

JUDGEMENT

(1.) This is an appeal by the plaintiff whose suit for rent has been dismissed by the Subordinate Judge. The plaintiff sued to recover a sum of Rs. 11,953-6 on account of rent, cesses and interest, due under a kabuliat, dated 2nd Sravan 1310 (July 1903). As security for payment of the rent, the plaintiff took a deposit from the defendants of Rs. 6,500 in cash and by a deed of even date a mortgage from them of certain other immoveable properties. The plaintiff brought this suit for a personal decree, giving credit for the Rs. 6,500 (as to which no question now arises) and reserving his remedies under the security bond for a separate suit. The learned Subordinate Judge appears to have thought that the question in the case was whether there, was any personal obligation on the part of the defendants to pay, and he reluctantly came to the conclusion that there was not. He says "I am of opinion that it (the contract) creates no personal liability on the part of the mortgagors to pay distinct from the mortgage, and that in any case the personal liability did not arise until after the sale of the mortgaged properties, so that upon the law on the subject and the authorities bearing upon it the suit as framed cannot be maintained. He accordingly dismissed the suit with costs."

(2.) The learned Subordinate Judge relied upon three cases; Mattongeney Dossee v. Ram Narain Sudkhan 4 C. 83 : 2 C.L.R. 428; Narotam Das v. Shed Pargash Singh 10 C. 740 : 11 I.A. 83 and Bunseedhar v. Sujat Ali 16 C. 540. It is notoriously unsafe to attempt to construe a contract by the aid of decisions on other contracts more or less dissimilar; but if the learned Subordinate Judge had consulted other and more recent cases, he might even thus have come to a different opinion. We may refer to the cases of Parbati Charan Roy v. Gobinda Chandra Kundu 4 C.L.J. 246; Kerr v. Ruston 4 C.L.J. 510; Ghasiram v. Raja Mohun Biram Sha 6 C.L.J. 639 at p. 649 and Ram Kishore Gir v. Surajdeo Parsad 13 C.W.N. 138 : 1 Ind. Cas. 442 : 9 C.L.J. 5 which were cited at the Bar. We need not, however, discuss these authorities, as upon the contention of the respondent s Counsel, it is manifest that the decision in this case must turn upon the construction to be put upon the contract between the parties. He admitted that the contract continued an express promise to pay the rent. In the face of paragraphs Nos. 1, 3 and 6 of the kabuliat it would be idle to dispute it. But he contended that on the true construction of the contract, the parties agreed that the mortgaged properties should be first proceeded against, before the plaintiff could enforce his remedy against the defendants personally or against their property which was not comprised in the mortgage. All that we have to do is to examine the contract and see whether it bears out the respondents contention. Before doing so, we may remark, that even if the contention were well founded, it would not justify the total dismissal of the plaintiffs suit. He would be entitled to a decree, subject to a stay of execution until such time as he had exhausted his remedy against the mortgaged properties.

(3.) The only clause in the kabuliat which bears on the question is Clause 18. That runs as follows: "That as security for our dar-ijara mehal, we deposit Rs. 6,500 and hypothecate the properties held in our rightful possession, without any encumbrance and without co-parcenary of others thereto, mentioned in the separate security-bond. We shall get deduction of the amount of deposit, in payment of the rent for the last period of the dar-ijara term. If our debt on account at the dar-ijara mehal be not paid off by the above mentioned hypothecated properties, you will be able to realise the money by sale of our other moveable and immoveable properties, standing in our own name or benami or by our arrest. We shall not, get any interest for the above mentioned sum in deposit. If you so wish, you will be able, at any time, without our consent, and without our receipt, to take our aforesaid money in deposit by crediting it in payment of the rent due from us; thereto no plea or objection on our part shall be admissible."