NILAKANTA PRABHU Vs. APPU NAIKA

JUDGEMENT

(1.) This appeal arises out of an order passed by the lower Court on an application tinder Order 34, Rule 6, Civil Procedure Code. In that application, the plaintiff asked for a decree against defendants 2 to 4 and against the assets of the first defendant in the hands of these defendants. The lower Court passed a decree only against the assets of the first defendant in the hands of defendants 2 to 5 but dismissed the application as far as it asked for a decree against defendants 2 to 4. It is this latter portion of the order that is complained of in the appeal.

(2.) Defendants 2 to 4 are the grandsons of the first defendant by a predeceased son. That son had executed a mortgage in favour of a third person and that mortgagee obtained a decree and brought to sale the mortgaged properties. As the father of defendants 2 to 4 was dead by that time, the grandfather, who was acting as guardian of his grandsons, though he had become divided from them, executed a mortgage in favour of the present plaintiff to raise money and stave off that sale. This later mortgage was executed by the grandfather for himself and as guardian of defendants 2 to 4. On this latter mortgage, the plaintiff instituted a suit obtained a decree for sale and has sold the properties covered by the mortgage. As the sale proceeds were not sufficient to satisfy the decree amount, he made this application under Order 34, Rule 6, Civil Procedure Code. The learned Subordinate Judge has dismissed the application so far as it sought relief against defendants 2to 4onsome ground of res judicata which it is not easy to follow. What he seems to have held is that though there has been no prior decision on this point, the omission to reserve the personal liability of these defendants in the preliminary decree precludes the plaintiff from claiming any relief against them under Order 34, Rule 6, Civil Procedure Code. We do not think that this is a proper position.

(3.) It is no doubt the practice in mortgage suits to consider even at the preliminary stage the question whether the personal remedy against the mortgagor is barred or not, but the omission to consider it or the omission to provide for it in the preliminary decree will not operate as res judicata, because the proper stage for dealing with the question of personal liability arises only after the mortgaged property has been sold and the proceeds are found insufficient to satisfy the plaintiff's claim. There can be no suggestion in this case or any question of limitation as regards personal liability, but as defendants 2 to 4 were minors at the time of the execution of the suit mortgage, there can be no question of personal liability in the sense of their being arrested or their self-acquired properties being proceeded against. The utmost that the mortgagee would have been entitled to is that not merely the mortgage properties but also other family properties in their hands should be held liable for their father's debt and it is only in that sense that the application under Order 34, Rule 6 can be granted against them.