PALANIAPPA CHETTIAR Vs. NARAYANAN CHETTIAR

JUDGEMENT

(1.) Before dealing with the question referred to us, we think it necessary to make a reservation about two of the cases noticed in the order of reference, viz., Sambasiva Aiyar v. Thirumalai Ramanuja Thathachariar (1918) 37 M.L.J. 356 and Singa Raja V/s. Pethu Raja (1918) I.L.R. 42 Mad. 61 : 35 M.L.J. 579. These decisions are there accepted as binding authority but their correctness has been assailed before us in another reference which (though part heard) has to be adjourned. As we have come to the conclusion that the present question must be answered in the affirmative even on the assumption that Sambasiva Aiyar V/s. Thirumalai Ramanuja Thathachariar (1918) 37 M.L.J. 356 and Singa Raja V/s. Pethu Raja (1918) I.L.R. 42 Mad. 61 : 35 M.L.J. 579, have been correctly decided, we proceed to answer the reference on that assumption; but we do not wish to be understood as accepting their correctness.

(2.) The order of reference states it is Mr. Patanjali Sastri's argument that if according to Sambasiva Aiyar V/s. Thirumalai Ramanuja Thathachariar (1918) 37 M.L.J. 356 an agreement or adjustment entered into before the passing of the preliminary decree in a mortgage suit cannot be pleaded in bar of execution of the final decree unless certified or recorded under Order 21, Rule 2, Civil Procedure Code, it must afortiori be the case that an uncertified agreement or adjustment entered into after the final decree cannot be so-pleaded. In one sense this contention may be correct but when it is sought to be applied in connection with proceedings under Order 34, Rule 6, Civil Procedure Code the argument involves a misreading of those decisions. We may observe in passing that the second defendant, who is the only party who has appealed, relies on an agreement alleged to have been entered into in November, 1928, and not on an arrangement of February, 1932, (as assumed in the order of reference).

(3.) In view of the course taken in the argument before us, we are obliged to draw pointed attention to what may seem elementary. A mortgagee's suit for sale may comprise two reliefs, one by way of sale of the properties mortgaged and the other by way of a personal decree against the mortgagor for what may remain due after the mortgaged properties have been sold. Though the plaint prays for both the reliefs, the Court is in the first instance expected to deal only with the relief by way of sale. The preliminary decree contains a declaration of the amount due on foot of the mortgage and contains directions as to what is to happen (1) if the defendant pays the amount into Court and (2) if the payment is not so made; but both the directions relate only to the property-mortgaged. The plaintiff's right to the other relief is not tried either at this stage or even at the stage of the final decree; so that, the final decree under Order 34, Rule 5, Civil Procedure Code, cannot be said to involve any adjudication as to this part of the suit and much less to have completely disposed of it. (See definition of decree in the Civil Procedure Code).