BILAT ROUT Vs. MAHBUB SAFI

JUDGEMENT

(1.) These appeals arise out of two suits brought by the same plaintiff against the same defendants. The facts are stated in some detail in the judgment of the Courts below and it is sufficient here to mention that the principal defendants Mahbub and others bad brought two mortgage suits, Nos. 2 and 3 of 1929, impleading (a) Gopal the mortgagor, now defendant second party, and (b), Bilat, puisne mortgagee, now plaintiff. Mahbub's claim was to recover possession of the mortgage property or in the alternative to have mortgage decrees charged on the properties for the amount of his dues. In the plaints of those suits there was no prayer for a personal decree against any of the defendants. Gopal put in appearance; Bilat did not. Mahbub compromised with Gopal who consented to a personal decree. A personal decree was drawn up in each suit against "the defendants." Each of these decrees was executed by Mahbub against the personal properties of Bilat. From this point the history of each case requires to be traced separately. The points of difference do not appear clearly in the judgments of the Courts below.

(2.) In the execution arising out of mortgage suit No. 2 Mahbub put up for sale some property of Bilat which was actually sold on 10 April 1930. Bilat did not object in the execution department or apply to have the sale set aside but instituted title suit No. 61 on 7 May 1930, praying for a declaration that nothing was due from him to Mahbub; that Mahbub had no right to get a decree for money against him; that the decree and sale are null and void and inoperative and for any other appropriate relief. This suit gives rise to second appeal No. 54. In the execution arising out of mortgage suit No. 3 property of Bilat had been attached and he objected on the ground among others that there was no decree capable of being executed against him. The objection was entertained under Section 47, Civil P.C, and was decided adversely to Bilat. To save his property from sale he paid up the decretal amount Rs. 147. He then brought title suit No. 74 which gives rise to second appeal No. 55. The declarations claimed are similar to those in the other suit and he asks for repayment of the sum that he was forced to pay. The Courts below have agreed in dismissing both the suits. Bilat had alleged suppression of processes but both Courts decided that the summons and processes were not suppressed. The Courts have held that Bilat, was not personally liable to pay the mortgage money and that the decrees which were framed as personal decrees against him as well as the mortgagor were wrong in law; but that the plaintiff cannot get a remedy in these suits. The view taken by the Courts below was that money decrees were passed against Bilat erroneously, but those decrees must stand as they were passed with jurisdiction and cannot be attacked in a separate suit. The proper remedy for Bilat was to appeal from the decrees or to apply for rehearing under Order 9, Rule 13, or to move the Court in review.

(3.) In appeal it is argued that the Courts should have examined the decrees with reference to the pleadings and should have held on a construction of the decrees that they were intended to be decrees executable against the mortgagors personally and against the mortgagee only to the extent of his interest in the mortgage property. The decree, as I have stated above, was in each suit expressed to be against "the defendant," and the argument is that this must be read to mean only those defendants against whom a money decree was claimed or could be claimed in a mortgage suit, as the Subordinate Judge has pointed out: It is clear that as the plaintiff was only a subsequent mortgagee no money decree could be passed against him.