ATMAKURU RAMA RAO Vs. ATMAKURU RAJESHWAR RAO

JUDGEMENT

(1.) This is an appeal from the decision of the learned Subordinate Judge of Berhampore, dated 17-12-1945, dismissing the appellant's objection under Section 47, Civil P.C.

(2.) The facts leading upto this appeal lie with in a very marrow compass, and may shortly be stated as follows: A mortgage suit for sale was instituted by the plaintiff respondents against the appellant and other members of his family on the basis of a mortgage bond executed by his father as representing the family. The suit was decreed, and a first appeal, being first Appeal No. 6 of 1940, was preferred by the appellant only, the other members of the family being impleaded as pro forma respondents. During the pendency of the said appeal, the decree was made final on 23-12-1940. That decree was put into execution in E.P. No. 16 of 1941. For certain reasons, not necessary to be stated here the said execution was stayed. The first appeal was heard and decided by this Court on 1-5-1943. This Court held that the decision of the trial Court that the mortgage bond was justified by legal necessity and was executed by the father when the family was in straitened circumstances justifying the alienation by the father was correct. In the result, the appeal was dismissed with costs. In the judgment of this Court, it is not stated that the costs of the appeal will be paid by the appellant personally. A decree was drawn up in the present case, the relevant portion of which is in these terms: It is Ordered and decreed that this appeal be and the same is hereby dismissed with costs. And it is further ordered and decreed that the appellant do pay to the respondents 1-4 the sum of rupees five hundred and thirty only, as per details at foot being the amount of costs incurred by the latter in this Court.

(3.) I have quoted the relevant portion of the decree in order to dispose of the argument advanced in the Court below and in this Court on behalf of the decree- holders. It may also be stated that the mortgagee-decree-holders did not make any attempt to have a fresh final decree prepared after the decision of the first appeal by this Court as aforesaid. But the decree-holders put the decree for costs prepared by this Court into execution in O.B.P. Suit No. 190 of 1945 on the footing that this was a simple money decree for payment of costs amounting to Rs. 630. This execution was taken out against the appellant only. The appellant filed an objection to the execution of the decree on several grounds, of which it is necessary only to notice the second objection which is to the effect that costs in a mortgage suit cannot be realised personally from one of the judgment-debtors in the absence of a specific direction in the decree to that effect, inasmuch as ordinarily costs in a mortgage suit must be realised from the sale of the mortgaged properties as a part of the mortgage decree. This objection was overruled by the learned Subordinate Judge on the ground that, in the circumstances of this case, the decree of the High Court must be taken as having been passed personally against the appellant unless there was a specific direction that it would form part of the decree on the mortgage dues as also on the ground that the decree of the High Court was passed after the final mortgage-decree had been drawn up in pursuance of the preliminary decree by the trial Court.