LALIT MOHAN DUTT Vs. KRISHNADHON BANDOPADHYA

JUDGEMENT

(1.) The appellant is defendant 2 in a mortgage suit. The suit was originally instituted against five defendants, and was for enforcement of a bond executed on 1 April 1915 to secure repayment of a sum of Rs. 10,000. The due date of repayment under the bond was at the end of one year. The suit was filed on 27 April 1929, when it is admitted, the claim to recover a personal decree against the mortgagors had already become barred. The mortgagee's remedy therefore lay only against the mortgaged properties. On 28 November 1930, the trial Court passed the usual preliminary decree against defendants 3, 4 and 5 only, but dismissed the suit against defendants 1 and 2, the reason for such dismissal being that so far as these two defendants were concerned, evidence of attestation of execution was defective, and also that the claim against them was time-barred. The plaintiff mortgagee appealed to this Court against this partial dismissal of the suit. The appeal being F.A. No. 105 of 1931 was disposed of by this Court on 8 March 1935, when the decision of the trial Judge was set aside, and the case remanded to that Court for a fresh decision on the question of attestation. And then an order for costs was made in the following terms: The plaintiff-appellant is entitled to get his costs in this appeal from defendants 1 and 2, respondents; the hearing fee in this Court is assessed at 3 gold mohurs. The costs in the Court below will abide the final decision of the Court below after remand.

(2.) It is the costs of the appeal in the High Court awarded by this order that is the subject- matter of the present proceeding. The result of the remand was that on 26 November 1935 there followed a preliminary decree against defendants 1 and 2. It directed that in default of payment of the decretal amount the mortgaged properties be sold by auction and that interest and other terms mentioned in the previous decree be enforceable against defendants 1 and 2 as well as against defendant 6,

(3.) Defendant 6, it should be stated, was added as a party after remand as being a subsequent purchaser of defendant 1's and 2's interest in the mortgaged properties. The decretal amount included the costs of the trial Court amounting to Rs. 1138-1-0 for the original hearing and Rs. 7-8-0 for the hearing on remand, but not the costs of the High Court appeal which amounted to a sum,of Rs. 996-11-0. On failure of defendants 1, 2 and 6 to pay the decretal amount, a final decree for sale was passed on 3 February 1936, and the mortgaged properties were actually sold thereunder on 24 September 1936. The sale fetched only a sum of Rs. 10,500 which was insufficient to pay the amount due to the plaintiff under the decree by about Rs. 3000. In view of the fact, as already stated, that the balance was not legally recoverable from the defendants personally, the plaintiff could not make any application under Order 34, Rule 6, Civil P.C. On 9 December 1937 however, the plaintiff filed an application for execution of the decree which this Court had made on 8 March 1935, for the costs of the appeal amounting to Rs. 996-11-0. It is out of this application that the present appeal has arisen. The application, it may be stated, was directed only against defendant 2, and sought to attach his salary to the extent of Rs. 100 a month. Defendant 2 opposed the execution mainly on the ground that the decree for costs could not be executed against him personally. His contention was that the costs of the High Court appeal properly formed part of the amount due under the mortgage decree, and were therefore primarily recoverable by execution against the mortgaged properties; it was only if the sale proceeds were insufficient that the plaintiff could take out personal execution under Order 34, Rule 6, provided a personal decree under this Rule was still open to him. In the present case, a personal decree was already barred at the date of institution of the suit, and the mortgaged properties had also been completely sold out, so that the effect of the objection taken was to negative the claim of the plaintiff to the costs of the High Court appeal altogether. The learned Subordinate Judge was unable to accept defendant 2's contention, and hence this appeal.