GOVINDASWAMI KOUNDAN Vs. KANDASWAMI KOUNDAN

JUDGEMENT

(1.) In this case the assignee decree-holder has applied under Order 34, Rule 6 of the Civil Procedure Code for a decree that the mortgagor be directed to pay the difference between the amount realised 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, the 1st defendant 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. I 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, Explanation V of the Civil Procedure Code. 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 retransferred, (2) that if the payment is not so made, the mortgaged property or a sufficient part be sold, and (3) the 1 defendant 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 the plaintiff's costs. It is said that that reference to 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 appellants to enable one to say that that 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. Form No. 45 of Appendix A is the form of the plaint in which the last clause asks for the personal remedy if the proceeds of the sale are found to he insufficient, and in the form of the decree given in Appendix D, No. 7, that proviso is attached to the decree in the shape of liberty being reserved to the plaintiff to apply, if necessary, for the personal remedy. The question shortly is : Is the fact that the personal remedy is asked for in a plaint and that nothing appears about it in the decree, enough to say that the plaintiff is for ever after barred from asking for it? If there has been no adjudication, as I hold, then it seems to me that the answer is clearly in the negative. In this view I am supported by the authority of the case in Maliaperumal V/s. Nachiappa (1895) 5 MLJ 294 (under the old Code) where Best, J., decided that it is not necessary that the original decree in the suit should give any remedy beyond the property mortgaged and ordered to be sold, and the same remark was made by Bakewell, J., in a case in Tirumalai Kadirvelusami Naicker V/s. The Eastern Development Corporation, Ltd. (1917) 33 MLJ 382.