SRI DATLA VENKATA SURYANARAYANA JAGAPATI RAJU BAHADUR GARU Vs. SRI RAJA INUGANTI VENKATARAJA GOPALA SURYA RAO BAHADUR GARU

JUDGEMENT

(1.) The question in appeal is whether the Respondents (Defendants Nos. 2 to 8) decree- holders inO.S. No. 69 of 1902 are entitled to rateable distribution along with the plaintiffs who obtained a decree against the same judgment-debtor the 1st Defendant in O.S. Nos.57 and 58 of 1904. The plaintiffs after having obtained the decree sold the properties of the 1st defendant in execution thereof on the 3rd August 1906. One-fourth of the sale proceeds was then paid into court and th? balance was deposited in court on the 17th August 1906. The defendants 2 to 8 obtained thejr decree on the 9th March 1903 against the 1st defendant who was the 2nd defendant in that suit and also some other parties. Whether it is a money decree are not so far as the 1st defendant is concerned, is one of the questions in dispute. On the 13th August 1906 they made an application under Section 90 of the Transfer of Property Act for a personal decree and on the 17th of the same month they obtained a decree by consent, which undoubtedly is a personal decree against the 1st defendant. On the same date they made an application (Exhibit C) for rateable distribution. It will be observed that this was the same date on which the balance of the sale proceeds was paid into court by the purchaser of the properties in execution of the plaintiff s decree in O.S. Nos. 57 and 58 of 04. The plaintiffs dispute the right of the respondents to claim rateable distribution. The Subordinate Judge held that under the decree in O.S. No. 69 of 02 dated the 9th March 1903, the respondents were not entitled to any rateable distribution as it was not a money decree; but he was of opinion that the decree which was passed on the 17th August 06 was not collusive and therefore illegal as contended for by the appellants and that the respondents were therefore entitled to rateable distribution under that decree. With reference to another argument that was advanced on behalf of the appellants that, as the purchase money was realized on the 1Mb August and the respondents obtained their consent decree only on the same day, it cannot be said that they had made an application " before the realization of the sale proceeds " which is necessary to entitle them to rateable distribution under Section 295 of the Civil Procedure Code, the Subordinate Judge held that as a matter of fact the decree was passed and the application was made before the realization and that therefore the respondents were not disentitled to rateable distribution on that ground. In appeal the same contentions have been mainly pressed upon us on behalf of the appellants.

(2.) It was contended before us that the decree passed on the 9th March 1903 in O.S. No. 69 was not a personal decree. That suit was brought bythe respondents Nos. 2 to 8 against the 1st defendant, Surya Rao who was the 2nd defendant in that suit and also against one Venkatrama Kayanim Garu the 1st defendant therein and his minor sons who were defendants Nos.3 and 4 in that suit on a mortgage bond executed by the 1st defendant therein and the father of Surya Rao the present 1st defendant. The plaintiffs prayed for a decree directing the defendant Nos. 1 to 4 to pay the amount due to them into court; and in default for the sale of the mortgaged property subject to the claims of certain prior mortgagees; for payment by the 1st defendant therein of the balance due after such sale and for the recovery of such balance by the sale of the other family properties of defendants No. 1, 3 and 4 and the family properties ofi the 2nd defendant Surya Rao the present 1st defendant (See Ex. II). The decree directed the 1st defendant therein to pay to the plaintiffs the amount claimed above Rs. 90,000 with interest thereon within a certain date. Then after the usual directions for the sale of the property in default of payment etc., there followed this important direction " that the defendants 2 to 4 be exempted from personal liability to the decree and that their shares in the mortgaged property be answerable." (See EX.A). The question that was argued at great length in this case was whether this was a personal decree or not; and both sides relied upon the Full Bench case in Vaidhyanathaswami Aiyar v. Somasundara Pillai (1909) I.L.R. 28 M. 473. In that case it was held that " every decree by virtue of which money is payable is to that extent a decree for money." See p. 477. The decree in the case before the Full Bench contained an order for the sale of the mortgaged property and also an order for the recovery personally from the judgment-debtor what might remain undischarged after the sale of the mortgaged property. There were similiar directions in the other cases decided by this Court referred therein viz., KammachiJcather v. Pakker (1909) I.L.R. 28 M. 473 and Abdulla Salt v. Doctor Oosman Salt (1904) I.L.R. 28 M. 224. This is the usual form of decree passed in mortgage suits in this Presidency and as all these decrees contain a direction for the payment of the money, though the mortgaged properties are first to be sold and it is only for the undischarged balance that the judgment-debtor is to be personally liable such decrees are decrees for money according to this Full Bench Division. In a later case, however, Krishnan v. Venkatapathy Chetti (1905) I.L.R. 29 M. 318 there was only a decree for the recovery of the money by the sale of the mortgaged property. There was no order for payment of money nor was there any order that the balance may be recovered personally or from the other properties of the debtor; and yet it was held on the strength of the Full Bench decision that it was a money decree. It may be reasonably doubted whether the Full Bench decision goes the length.

(3.) The decree in the case in Krishnan v. Venkachalapathi (1905) I.L.R. 29 M. 318 may be a decree for money according to the Full Bench decision to the extent it may be discharged by the sale proceeds of the property sold. As for the balance that might be due, if there is no decree at all directing the defendant to pay the money, there can scarcely be said to be a money decree. However in the decree in O.S. No.69 passed on the 6th March 1903 there is no direction that the 2nd defendant Surya Row should pay any money at all. On the other hand his share in the mortgaged property is alone declared to be answerable. This might make it a personal decree according to the decision in Krishnan v. Venkatachelapathi (1905) I.L.R. 29 M. 318 to the extent of the sale proceeds that may be realized by the mortgaged property, but in this case it is admitted by. the respondents in their petition (D) for a decree under Section 90 T.P. Act that the mortgaged property is worthless, that it is encumbered to much more than its market value and that when they attempted to get the property sold in court auction there was no bid at all; Mr. Srinivasa Aiyangar also relies upon the provision in the decree that the 2nd defendent is exempted from personal liability to show that it cannot be construed as a personal decree. The contention appears to be right. There can scarcely be said to be a money decree in the face of such a provision. We confirm the finding of the subordinate Judge on this point.