RAMASWAMI NAICKER Vs. CHINNATHAYAMMAL

JUDGEMENT

(1.) There are no merits whatever in this second appeal, because it is, as admitted frankly, merely an attempt on the part of the appellants to escape liability for payment of costs in appeal decreed by the appellate Court. The argument for the appellants may be briefly put thus: In all mortgage suits for sale whatever costs may be ordered should be realized in the first instance only by the sale of the mortgaged property and it is only if after the sale of the securities it should be found that the sale proceeds are insufficient to pay up the whole amount inclusive of cost to the decree-holder, that the decree-holder can apply for execution against the person of the judgment-debtor. In this case satisfaction of the original decree was entered up by payment of the amount for which the sale was ordered. As satisfaction of the decree for she has been entered up, the property cannot now be brought to sale, and if the argument of the appellants should be accepted that the decree-holder has a right to seek execution against the judgment-debtor personally for costs only after exhausting the securities, then in this case the decree-holder should go without any remedy, because the dilemma on that argument is that he cannot get his costs unless the property is sold and the property cannot now be sold. Though thus the attempt of the appellants is devoid of any merits, still he would have been entitled to succeed if his contention on the law should be bound to be accepted and given effect to. But I am glad to have come to the conclusion that the law is neither so senseless nor so helpless.

(2.) A large number of cases have been referred to by the learned vakil for the appellants, but before proceeding to refer to any of them, three observations require to be made. The first is, that all questions with regard to the matter have, so far as I am able to see, arisen only in the form whether a decree for costs as such should be allowed to be executed against the person of the judgment-debtor when the security still remains unsold and is available for sale. No Court of law and no decision has been shown to have held that when for some reason the mortgage security is not available for sale, still the decree for costs although subsisting and executable cannot be executed at all. In other words, on considerations, legal or equitable, Courts of law have in some cases merely indicated the steps in the procedure or the priority of recourse to be adopted by the decree-holder. It seems to me, therefore, monstrous to invoke the principle of such decisions for the purpose of bringing about a result which in plain terms deny to the decree-holder any recourse of remedy at all.

(3.) The second observation I should like to make is that the question must always be regarded as one of construction of the decree and of the intention of the Court to be gathered from the terms of the decree. If a decree on a proper construction should be held to have made the costs payable personally by the defendants, apart altogether from the securities or the sale of them, it seems to me there is not and could not be any rule or principle of law saying that such a decree could not be executed according to its tenor. What the Courts of law have done in all oases which have been cited is to construe the decree, and if in so construing the intention of the Court be not clear, to refer to the rules with regard to the framing of the decrees for the purpose of arriving at the true intention of the Court in making the decree. At best it seems to me that such a process, namely that of calling to aid the rules relating to the form of decrees to be passed for the purpose of construing the decree is itself a process open to question. However that may be, it cannot possibly be pretended that apart from the construction of a decree there can be anything in the rules relating to the frame or form which can require a decree to be understood in any way other than as it says.