ADHAR CHANDRA NASKAR Vs. SARNWAMOYI DASI

JUDGEMENT

(1.) The appellant in this case has been described as the judgment-debtor but he is in reality the defendant in the suit out of which the present appeal arises. The facts are that the plaintiff as second mortgagee in respect of certain properties brought a suit on his mortgage and obtained a final decree. But before he could execute the decree, a suit was brought by a prior mortgagee on his mortgage to which the mortgagor and the plaintiff in the present suit as puisne mortgagee were parties. A decree was obtained in execution of which the property mortgaged with the plaintiff was sold in satisfaction of the debt due to the prior mortgagee. Thereafter the plaintiff made an application to the Court for a decree under Order 34, Rule 6, Civil P.C. That application was granted and a decree has been passed under that rule in favour of the plaintiff.

(2.) The defendant appeals and it is contended on his behalf that the trial Court had no jurisdiction to pass a decree under Order 34, Rule 6, before the plaintiff had exhausted all his remedies under the decree obtained by him, in other words, before ho had sold the mortgaged property or attempted to sell it, and that only in the event of a balance of the debt remaining unpaid that he had the right to apply for a decree under that rule. On the wording of the rule it would seem that the contention of the appellant has some substance. But a recent decision of their Lordships of the Judicial Committee has to my mind settled the point in controversy. In Jeunu Bahu V/s. Parmeswar Narain A.I.R. 1918 P.C. 159 a decree was passed in favour of the mortgagee which was a combined decree under Secs.89 and 90, T.P. Act, corresponding to Rule 5 and 6, Order 34, Civil P.C., The same objection as is now urged before us was pressed at their Lordships Bar but it was overruled. On the point with which we are now concerned the following observation was made: The appellants contend that the opening words establish as a condition precedent to the power of decreeing payment of the balance that the mortgaged property must first be sold and found insufficient to satisfy the debt. It is admittedly a strict and technical construction of the statute and one for which no reason can be assigned and from which no advantage can possibly be derived by any mortgagor. It would be unfortunate if the statute by its terms rendered necessary the adoption of this contention but in their Lordships opinion it is not necessary so to construe the Act.

(3.) The principle on which the decision of their Lordships is based is that on a reasonable construction of the statute a decree may be passed under Section 90, even before the condition contemplated by the section has been followed; that is, before it has been ascertained that the proceeds of the sale of the mortgaged properties are. insufficient to pay the mortgage debt. And it is in accord with English law. Fisher on Mortgage, Secs.806, 990. In this view of the decision of the Judicial. Committee the rulings of this Court and of the Allahabad High Court which held a contrary view must be deemed to have been overruled such as Ramranjan Chakravarty V/s. Indra Narayan Das [1906] 33 Cal. 890, Chand Mal V/s. Ban Behary , Lakhi Narayan V/s. Krithibas Das [1913] 18 0. L.J. 133, Badri Das V/s. Inayat Khan [1900] 22 All. 404 and Kamta Prasad V/s. Syed Ahmad [1909] 31 All. 373. Now if a combined decree under Rules 5 and 6, Order 34, can be passed before the mortgaged property has. been sold and the sale proceeds found insufficient, there seems no reason why a decree cannot be passed under Rule 6 before that under Rule 5 has been executed. In other words, the difference between the decree before the Judicial Committee and the present decree is that in that case there was a combined decree under Rule 5 and 6 of Order 34, Civil P.C., and in the present case there are two decrees one under Rule 5 and another under Rule 6. The only differene is that in one case there-was a combined deree and in the other case there are two decrees which taken together would have the effect of combined decree. There is difference in form butt not in principle.