CHAND MALL BABU Vs. BAN BEHARI BOSE

JUDGEMENT

(1.) This appeal is directed against the dismissal of an application under Rule 6 of Order 34 of the Civil P. C. of 1908. The facts material for the decision of the questions raised before us really lie in a small compass and may be briefly recited.

(2.) One Ananda Chandra Bose died leaving a widow and seven sons. Three of these sons died childless with the result that their interest in the ancestral estate was inherited by their mother. The position consequently was that the widow became entitled to a 3/7 share and the remaining 4/7 share was divided equally amongst the four sons. On the 16 April 1903, two of the sons executed a mortgage in favour of the appellant to secure a loan of Rs. 15,000. There were six properties given by way of security, and what was hypothecated was the 2/7th share of the two mortgagors in the properties mentioned. On the 19 April 1905 the widow and three of the sons executed another mortgage in favour of the appellant to secure a loan of 10,000. Two of these sons were executants of the earlier mortgage. There were twelve properties given by way of security, and these included the six covered by the previous mortgage. The position consequently was that a 6/7 share in the hypothecated proper, ties was given by way of security, while the 2/7 share of the two sons in six out of the twelve properties was covered by the earlier mortgage. On the 14 May 1915 a preliminary decree was made on the earlier mortgage; this decree was made final on the 22nd January, 1916. On the 14 February, 1918, a preliminary decree was made in the trial Court on the basis of the later mortgage. The decree-holder preferred an appeal to this Court with the result that on the 8 May, 1919, this Court increased the amount recoverable by the mortgagee from the mortgagor. This order was subsequently carried out by the Subordinate Judge in the manner following, namely, a final decree was made by him on the 30 August, 1919, on the basis of the decree made by this Court. In the interval between the date of the preliminary decree by the trial Court and the final decree made by that Court pursuant to the decree of the High Court, some of the properties had been sold. Two properties were sold under Regulation VIII of 1819 and in execution on the 15 May 1918 and the 22 March, 1919, respectively. The surplus sale-proceeds were applied in reduction of the sums due on the preliminary decrees under the two mortgages. The result was that when the final decree on the later mortgage was made on the 30 August, 1919, it was found that Rs. 7,353-2 was still due Since then, other properties have been sold for arrears of rent, for arrears of revenue, and in execution of the mortgage decrees. The decree-holder maintains that the sale-proceeds so realised have not been sufficient to satisfy his claim, and he has consequently applied for a personal decree under Rule 6 of Order 34 of the Civil Procedure Code. The application has been dismissed by the Subordinate Judge on the ground that the decree-holder has not complied with the requirements of its provisions.

(3.) Order 34, Rule 6, is in the following terms : "where the net proceeds of any such sale are found to be insufficient to pay the amount due to the plaintiff, if the balance is legally recoverable from the defendant otherwise than out of the property sold, the Court may pass a decree for such amount." It is plain that the expression "any such sale" has reference to Rule 5, Sub-rule (2), which ordains that if payment is not made as directed by the preliminary decree, the Court shall, on application made in that behalf by the plaintiff, pass a decree that the mortgaged property, or a sufficient part thereof, be sold, and that the proceeds of the sale be dealt with as is mentioned in Rule 4. Consequently before the plaintiff can invoke the aid of the provisions of Rule 6, he must establish that the mortgaged properties have been sold as contemplated by Sub-rule 2 of Rule 5. If this is construed according to the strict letter of the law, it may be possible to maintain that Rule 6 cannot come into operation where the sale has taken place, not in execution of the final decree as contemplated by Rule 5 but otherwise, for instance under proceedings taken in accordance with Regulation VIII of 1819. This contention has not been put forward and cannot be supported in the face of the decision in Satis Ranjan Das V/s. Mercantile Bank of India (1917) Cal. 702. In that case it was pointed out that the object of the rules obviously is that the remedy of the mortgagee should, in the first instance, be against the property mortgaged, and that such property should be exhausted before a personal liability was imposed upon the mortgagor. But the rules surely cannot mean that if a portion of the property, however small which was included in the mortgage and therefore included in the mortgage decree as a portion of what was to be sold, is destroyed or has 6eased to be available for sale after the date of the decree, through no fault of the mortgagee there can be no decree for personal liability against the mortgagor. We are of opinion that this interpretation of Rule 6 of Order 34 is reasonable and should be adopted. In the case before us, it has not been urged that Rule 6 has ceased to be applicable because some of the properties were sold at the instance of the superior landlord either under Regulation VIII of 1819 or in execution of a decree for arrears of rent which constituted a prior charge thereupon.