DIRGPAL SINGH Vs. GULZARI LAL

JUDGEMENT

(1.) This is an execution first appeal by a judgment-debtor. The facts are that on 13 September 1912 the appellant borrowed Rs. 5000 on a simple mortgage payable in five years from one Gulzari Lal, respondent 1. There were five items of property mortgaged, one of which was a zamindari share in Mauza Kaohhora. Gulzari Lal brought Suit No. 138 of 1918 under Order 34, Rule 4, Civil P.C. for the sale of property by enforcement of this mortgage but in the plaint he asked that the suit should be only against four of the items of property and he exempted the zamindari share in Mauza Kachhora. A final decree for sale was passed on 21st February 1922, and the four items of property were sold; some balance remained. On 9 April 1932, the decree-holder obtained a simple money decree under Order 34, Rule 6. In execution of that simple money decree the decree-holder has now applied for the sale of Mauza Kaohhora as a part of the property of the judgment- debtor. The objection is taken that under Order 34, Rule 14, the property cannot be sold because it was part of the mortgaged property. Order 34, Rule 14, Sub- rule (1) states: Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order 2, Rule 2.

(2.) By a reference to Order 2, Rule 2, we consider that the sub-rule refers to a simple money suit because it is only in such a case that there could be any question of bringing another suit for sale in enforcement of a mortgage. We do not consider that the sub-rule can apply to a simple money decree under Order 34, Rule 6 because in such a case the suit has already been brought for sale on the mortgage and no question of instituting a suit for sale on the mortgage could arise. The argument of the learned Counsel for the appellant is that although the Rule may not be intended to apply to a case like the present, still the actual wording of the Rule would cover the present case. The present case is an exception to cases under Rule 6, because in the present case the suit was not against all the mortgaged property but only against some of it. Such a case is a very rare exception. Rule 6 itself is an exceptional case of a simple money decree. It is most unlikely that the Rule could have been intended to provide for the case of an exception to an exception. It is not a correct method of interpretation to apply a Rule to a case to which it could not have been intended to apply as shown by the wording of the Rule itself. Order 2, Rule 2(2) provides: Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3.) It is clear therefore that as the plaintiff relinquished his claim in the mortgage suit so far as the share in Mauza Kachhora is concerned, the plaintiff cannot now bring any mortgage suit against that share and his right to enforce the mortgage against that share has terminated. Learned Counsel referred to a number of cases, one of which is Khan Chand V/s. Ghasita . That ruling was in a somewhat different case where there was a usufructuary mortgage and the plaintiff while in possession sued for a simple money decree. The simple money decree contained certain words : "The plaintiffs will have no title or Concern left with the mortgaged property after the passing of this decree". This Court held in the ruling: All these words in the decree were entered so as to make it certain that the mortgagees may not continue in possession of the property in spite of the money decree. In reality those directions brought an end to the possession of the mortgagees but not to their title to recover money under the mortgage.