DURAISWAMI IYENGAR Vs. RANGASWAMI IYENGAR

JUDGEMENT

(1.) BOTH the lower Courts have held that the plaintiff mortgagee is entitled to a personal decree and the question is whether that view is wrong. The suit with which we are concerned, is O.S. No. 30 of 1924. That was filed by the second mortgagee and the prior mortgagee was not impleaded. Subsequently O.S. No. 435 of 1920 was instituted by the first mortgagee and to that suit however the second mortgagee was made a party. In execution of the decree passed in the last mentioned suit, the entire property mortgaged was brought to sale and nothing remained to be sold in execution of the decree in O.S. No. 30 of 1924. The point to be decided is, whether the second mortgagee, i.e., the plaintiff in O.S. No. 30 of 1924, is entitled to obtain a personal decree in his suit. The lower Courts have answered the question in the affirmative, and in my opinion, rightly. Mr. Thiruvenkatachariar for the appellant has argued the point fully, citing the numerous cases on the subject. Badri Das V/s. Inayat Khan (1900) 22 All. 404, and Darbari Mal V/s. Mula Singh 1920 All 155, entirely support his contention. I must remark that the Allahabad High Court has taken two extremes, and, if I may say so with respect, inconsistent views. First, lit has held that the mortgagee is entitled to a personal decree even if he has relinquished his claim against portions of the mortgaged property. This view has been dissented from by our High Court : Arunachala Vellan V/s. Venkatarama Raghavayya 1920 Mad 221, Secondly the Allahabad High Court, going to the other extreme, has held, that in cases, like the present, the mortgagee is not entitled to a personal decree. The decisions, where this view has been taken, are Badri Das V/s. Inayat Khan (1900) 22 All 404 and Darbari Mal V/s. Mula Singh 1920 All 155, already referred to. But I think the correct principle is that contained in the decisions of our own Court.

(2.) THE question in each case is : Is the act of the mortgagee unreasonable or does blame attach to him? If not, he is entitled to a personal decree. This is the principle deducible from Arunachala Vellan V/s. Venkatarama Raghavayya 1920 Mad. 221, Kone V/s. Muthiah Chettiar 1915 Mad. 452 and Periasami Shanmuga Pillai v. Ramanathan Chettiar (1894) 17 Mad. 309. In the last mentioned case, one of the properties, in respect of which the mortgage decree was obtained, was claimed by the judgment-debtor's brother. He was not a party to the decree and had instituted a suit for partition. In that suit the property in dispute fell to the share of the brother. THEreupon the mortgagee, without taking steps to sell that property, asked for a personal decree against his judgment-debtor. It was held that he was entitled. In the first of the three oases mentioned above Arunachala Vellan v. Venkatarama Raghavayya 1920 Mad. 221, Seshagiri Iyer, J., quotes with approval the observation of Sir John Woodroffe in Ranjan Das V/s. Mercantile Bank of India Ltd. 1919 Cal. 951 that the matter "should be looked at rationally", and Oldfield, J., observes that each, case must be decided on its own merits. This view is in conformity with my decision in Govindaswami Koundan V/s. Kandaswami Koundan 1934 Mad 82. I must therefore hold that the conclusion of the lower appellate Court is right. THE second appeal fails and is dismissed with costs.