SURI MARKANDEYA SASTRI Vs. GOTTUMUKKALA SUBHANADHRA CHARYULU

JUDGEMENT

(1.) We cannot agree with the Subordinate Judge in his opinion that the mortgage deed in this case contains no personal covenant to pay. The words "we shall discharge the debt" make this a stronger case than that of Abbakke Heggadthi v. Kinhiamma Shetty 29 M. 491. where it was held that the personal liability of the mortgagor would ordinarily exist in the absence of a specific contract to the contrary.

(2.) The Subordinate Judge would have been on safer ground if he had based his refusal on the second ground mentioned in his judgment, namely, that the decree-holder was entitled to proceed against the person of the defendants under Order XXXIV, rule 6, only after the proceeds of the sale of the mortgaged property proved to be insufficient to pay the amount due (Order XXXIV, rule 6, Civil Procedure Code).

(3.) But the District Munsif s decree did not conform to the form for mortgage decrees printed in Appendix D, inasmuch as it did not expressly reserve this right, and the Subordinate Judge, having recognised that according to that form the right should have been reserved, should have provided accordingly in his decree,