CHARU CHANDRA ROY Vs. HRISHIKESH ROY AND ANOTHER

JUDGEMENT

(1.) This appeal is on behalf of judgment-debtor 6 and is directed against an appellate order of the District Judge, Midnapur, passed in Misc. Appeal No. 48 of 1936, by which he reversed the order of the Subordinate Judge, 3 Court, Midnapur, passed in an execution case under Section 47, Civil P.C. The facts of the case lie within a short compass and are not in controversy. The decree-holders started a mortgage suit against six defendants in the Court of the Subordinate Judge at Midnapur, and the present appellant who was defendant 6 in the suit was made a party on the allegation that he was a transferee of the mortgaged property subsequent to the mortgage. The trial Court dismissed the suit on 22 January, 1931, and against that an appeal was preferred by the plaintiffs, which was resisted by defendant 6 alone. The District Judge on appeal reversed the decision of the trial Court and gave the plaintiff a decree on 30 August 1932. The material portion of the decree stands as follows: The judgment and decree of the Court dismissing the suit are reversed and it is ordered that the original suit be decreed against defendants 1 to 6 with costs; it is also ordered that in the event of defendants 1 to 6 failing to pay the decretal amount with interest during pendency of the suit at the bond rate on the principal amount within two months from this date, the mortgage property will be sold for recovery of the decretal amount.... The costs of this appeal as detailed below, amounting to Rs. 264-1-0, are to be paid by defendant-respondent 6 to the plaintiffs-appellants.

(2.) A final mortgage decree was passed on the basis of this preliminary decree on 16th December 1933, and it is not disputed that the decree for costs of the appellate Court passed against defendant 6 was not entered in the final decree. The final decree was executed by the decree-holder in Ex. Case No. 71 of 1935, which was disposed of on 20 March 1936. On 14 February 1936 the present application for execution of the decree for costs against defendant 6 alone was presented by the decree-holders. The trial Court dismissed the application for execution on the ground that it was barred by limitation as being presented beyond three years from 30 August 1932 when the decree was passed. The appellate Court set aside the decision and held that the decree-holders could wait till the final decree was prepared, and that in any event, time was saved by the application for execution of the final decree under Art. 182, Clause (5), Limitation Act, read with Expln. (1). On this view the lower appellate Court directed the execution case to proceed and the present appeal is against this order. The decision of the District Judge has been assailed on both the points before me by the learned Advocate appearing for the appellants. On the first point, it is clear from the wording of the decree set out above that it was a final decree for costs passed against defendant 6 alone who was the only person who contested the appeal. It cannot be said that the mortgagee was bound to include these costs in the final decree, and ought to have proceeded against the mortgaged property first, before he could proceed personally against defendant 6. As has been laid down by Sir Lawrence Jenkins in Mohunga Ojha V/s. Ram Bahadur Singh (1912) 16 C W N 731, it is a question of interpretation of the decree, and it is perfectly within the discretion of an appellate Court dealing with an appeal in a mortgage suit to make one or more defendants personally liable for costs: see Amina Bibi V/s. Rama Shankar AIR 1919 All 297. It is significant to note that these costs were not entered in the final decree, and no attachment was made by the decree-holders to have the decree executed up till now. In my opinion the decree-holder could proceed to execute this decree for costs without waiting till the final decree was passed, and without proceeding against the mortgaged property in the first instance. The first ground therefore upon which the Court of appeal below proceeded is not tenable.

(3.) The second point turns upon the construction of Expln. (1) attached to Art. 182, Limitation Act. The learned Judge seems to be of opinion, and this is pressed by Mr. Janah who appears for the respondents in this appeal, that the decree being a joint decree against all the judgment-debtors, though a separate relief was given against defendant 6, an application for execution of the joint decree would keep alive the entire decree, including that portion which was not executed. In support of this view reliance is placed on Ram Brichh Rai V/s. Deoo Tiwari AIR 1922 All 388 and Subramaniya Chettiyar V/s. Alagappa Chattiyar (1907) 30 Mad 268. The last case laid down that Expln. (1) to Art. 182, Limitation Act, should be liberally construed and when one relief is given against all the judgment-debtors jointly, it is a joint decree, even though additional relief may be given against different judgment-debtors separately. In the Allahabad case, the suit was instituted against the members of a joint Hindu family on the basis of a mortgage of the family property and it was found that a portion only of the debt was incurred for family necessity. So far as this portion was concerned a usual mortgage decree was given against all the defendants and a simple money decree was passed against the two defendants who executed the bond. The Court held that an application for execution of the first portion of the decree kept alive the entire decree, even with regard to, the portion which made only the two defendants personally liable. It was observed that: There was really one decree for the whole of the mortgage money and the second application being made within three years of the first application, in which these persons interested were also parties, kept the decree alive.