NAGOR DAMODAR SHANBHOGUE (DIED) Vs. GANGE

JUDGEMENT

(1.) This is an appeal from the order of the learned Subordinate Judge of South Kanara ordering the arrest of the appellant in execution of the decree for costs in favour of the respondents in Appeal No. 223 of 1926 on the file of the High Court on appeal from the decree in O.S. No. 8 of 1924 on the file of the Subordinate Judge of South Kanara. The said suit O.S. No. 8 of 1924 was filed by the appellant to recover a sum of money due in respect of a usufructuary mortgage executed by the defendants and also for arrears of rent in respect of certain leases executed by some of the defendants relating to the mortgaged property. The Subordinate Judge dismissed the plaintiff's suit on the ground that the appellant was not entitled to bring the property to sale as there was no personal covenant to pay. On appeal the learned Judges held that so far as the mortgage is concerned, there was no personal covenant which would entitle the appellant to the relief of selling the mortgaged property, but in regard to arrears of rent, as the mortgage property had been made a security for the arrears of rent, there was no bar to the enforcement of the charge by asking for the sale of the properties. Accordingly they passed a preliminary decree for sale for the amount claimed in respect of the arrears of rent. The relief that was ultimately awarded by the judgment of the High Court ran thus: In the result, the appeal is partly allowed and a decree is given in plaintiff's favour for a sum of Rs. 11,425-7-0 (on account of the arrears of rent claimed in Schedule B) with subsequent interest thereon at 6 per cent, per annum from the date of suit till the date fixed for payment and also proportionate costs in both the Courts, and thereafter with interest at six per cent, per annum on the aggregate amount. Time for payment is four months from this date. In case of default in payment, the mortgaged properties will be sold, subject to the usufructuary mortgage lien of the plaintiff under Ex. A. Liberty is reserved to him to bring a portion only of the mortgaged properties to sale for the realisation of this decree amount, free from such, usufructuary mortgage lien. The respondents costs in both the Courts, proportionate on the value of the claim disallowed, should be paid by the plaintiff. Damodara V/s. Chandappu Pujary .

(2.) Thus both the plaintiff and the defendants (respondent in the present appeal) were awarded proportionate costs. On a reference to the decree it will be seen that these costs were separately taxed. The ultimate decree that was drafted in pursuance of the judgment declared that the amount of principal, interest and proportionate costs in both the Courts calculated up to the 6 July, 1933, was Rs. 19,450-10-3 and in default of payment of the amount on or before the 6 of July, 1933, the properties were directed to be sold. So far as the costs awarded in favour of the respondents were concerned, the decree ran thus: And this Court doth further order and decree that the appellant (plaintiff) do pay to the respondents 15, 17 to 24, 26 to 28 and 30 (defendants 16, 18 to 25, 27 to 29 and 31) Rs. 539-12-2 for their proportionate costs in opposing this appeal and also their proportionate costs in the lower Court, which will be taxed and ascertained by that Court on the amount disallowed.

(3.) The net result is that under the same decree both the plaintiff and the defendants were entitled to recover sums of money from each other. The respondents in whose favour costs were awarded against the plaintiff-appellant sought to execute the same by applying for the arrest of the plaintiff. The plaintiff opposed the application on the ground that the defendants were not entitled to execute the decree as the amount decreed in his favour was far in excess of the amount awarded in favour of the respondents and therefore by virtue of Order 21, Rule 19, they were not entitled to the relief they sought. This contention was overruled by the learned Subordinate Judge on the ground that there was no personal decree against the defendants but only a decree against the property. He therefore ordered the issue of a warrant of arrest. It is against this decision that this appeal has been preferred.