GOVINDASAMY KOUNDAN Vs. BAPATLA VENKOBA ROW

JUDGEMENT

(1.) In this case the assignee decree-holder has applied under Order 34, Rule 6, Civil P. C., for a decree that a mortgagor be directed to pay the difference between the amount realized by the sale of the hypotheca and the amount due to the plaintiff on his mortgage. The request has been refused by the District Munsif and allowed on appeal by the Subordinate Judge, and it is against this allowance of the personal remedy that the appeal has come to us here.

(2.) The mortgage was one of 1905 and the suit on it was brought in 1912. The plaint in the mortgage suit is printed as Ex. A, and it asks for sale of the mortgaged property, and: directing that if there be still any balance even after the auction sale, defendant 1 personally and the family properties of defendants 1, 2 and 3 be held responsible therefor.

(3.) The argument of the learned vakil for the appellants is that the plaintiff having asked for that personal relief, and the decree which appears as Ex. 1 being silent on the point, we must assume from the judgment (which is not forthcoming) that the Judge has decided this relief (c) in the plaint against the plaintiff and therefore the matter is either actually res judicata or is in the nature of an implied res judicata under Section 11, Expl. 5, Civil P. C. The whole argument is based on the fact that the decree directs: (1) that the defendants pay into Court a certain sum before a certain date, and. if they do so the property should be transferred; (2) that if the payment is not so made, the mortgaged property or a sufficient part be sold: and (3) that defendant 1 is personally liable only for the plaintiff's costs. It is said that that reference to personal liability only for costs is a certain indication that an adjudication must have taken place by the Court on the relief (c) asked for in the plaint. The District Munsif held that the personal remedy must be taken to have been refused. The Subordinate Judge, however, holds that there is no ground for inferring any such refusal of the personal remedy in the decree. There is no issue about it and there was no adjudication thereon. The question is whether sufficient ground has been shown by the appellant to enable one to say that the finding of the Subordinate Judge cannot stand. In my opinion there is none. The form of the decree given in the old Code, No. 128 of the forms, does not contain any reference to the personal remedy though the plaint form (No. 109) does under the new Code.