HANMANT TIMAJI DESAI Vs. RAGHAVENDRARAO GURURAO DESAI

JUDGEMENT

(1.) The plaintiff obtained a decree on an award on the 8 October 1915, whereby it was directed that the defendants should pay to the plaintiff Rs. 14,000 by eleven instalments; that the first ten instalments were to be paid by annual instalments of Rs. 1,300 each, and the last instalment was to be one of Rs. 1,000; that the defendants should pay the instalment every year on 1 August to the plaintiff; that the first instalment was to be paid on 1 August 1916; that if the defendants failed to pay any two instalments out of the said instalments, the said two instalments should be paid within six months from the date of default to pay the second instalment; and that in case of failure to pay the said two instalments within six months accordingly, the plaintiff should recover the whole amount of the said two instalments and the future instalments that remained unpaid on that day, and costs, by sale of the property mentioned in the deed of mortgage without possession.

(2.) The date of the mortgage on which the decree was passed was 8 September 1904. It is quite clear that any personal remedy against the mortgagor would be barred by limitation. The first instalment was paid on the 1 August 1916, but the second one not having been paid, the plaintiff applied in July 1918 for execution of the decree by selling a portion of the mortgaged property to realize the amount of the second instalment. The defendant contended that the property could not be sold unless two instalments were in arrears, and the matter came up to the High Court on appeal from the decision of the Subordinate Judge allowing execution to proceed: Hanmant V/s. Raghavendra . It was held that the application for execution was premature. But from the judgment of Mr. Justice Shah it might be inferred that the Court was of opinion that a suit might have been filed to recover Rs. 1,300, the instalment clue, and in that suit a decree might be obtained for sale of the mortgaged property or sufficient to satisfy the payment of the instalment in arrear. With due respect we doubt very much if that was a correct reading of Order XXXIV, Rule 14, Civil Procedure Code.

(3.) But at present we are concerned with a later Darkhast taken out by the plaintiff by which he sought to recover the instalment which fell due on the 1st August 1917 by attaching other property of the defendant, namely, the decree which he had obtained against one Shrinivas Murhar in the Court of Haveri. The Judge said "the most important question which I have to decide is, therefore, whether plaintiff can proceed now against the persons of the defendants, or their property other than that mortgaged to him in Exhibit 4," and he found that the plaintiff was entitled to recover the amount claimed either from the persons of the defendants or from any of the property of theire excepting the mortgaged property in Exhibit 4.