VENUGOPALACHARIAR Vs. PADMANABHA ROW

JUDGEMENT

(1.) The suit was on a mortgage and ended in a decree for recovery by sale of the property. The decree also contained a declaration of the personal liability of 2nd defendant for plaintiff s costs in case the sale-proceeds were not sufficient to pay them as well as the mortgage- money. Defendant No. 2, who appeals against this part of the decree, purchased the property after the suit mortgagee.

(2.) His first objection, that such a declaration call in no case be included in a preliminary decree for sale, is answered by reference to Kamalamma v. Komandur Narasimha Charlu 30 M. 646 : 17 M.L.J. 317 : 2 M.L.I. 359.

(3.) Next he argues that whilst such a declaration can be given, as in that case, against the mortgagor, none can be given against any other party, because it is only against the mortgagor that a personal decree under Order XXXIV, Rule 6, (Section 90, Transfer of Property Act) can eventually be passed. Costs, it is said, may be legally recoverable from 2nd defendant under the decree against him. Bat the mortgage-money will not be legally recoverable from him; and, as the assumption that the portion of the decree amount unsatisfied by the sale-proceeds represents costs, not the mortgage-money, will be inadmissible, the passing of a personal decree against him for it will not be justified by law.