KANDASAMI GOUNDAN Vs. MINOR KUPPA MOOPAN

JUDGEMENT

(1.) The Lower Courts have found that the suit mortgage was neither executed for an antecedent debt nor for any necessary purpose binding on the sons. It is therefore clear that the mortgage as a mortgage is not enforceable against the sons shares in the property mortgaged and no mortgage decree for sale of those shares can be passed against them. This is not controverted by the appellant.

(2.) It is however claimed for the appellant that a conditional decree for the recovery of any balance left, in case the net proceeds of the sale of the father s share or the mortgaged property is found to be insufficient to pay the amount due to him should have been passed under Order 34, Rule 6, Civil Procedure Code, against the 1st defendant the mortgagor personally and against the ancestral properties of himself and his sons, as prayed for by him in his plaint.

(3.) That a conditional decree under Section 90 of the Transfer of Property Act can be passed in the mortgage suit itself without waiting for the mortgaged property to be sold to ascertain if any balance will be left over is clear from the observations of the Privy Council in Mu ammat Jauna Baku v. Raik Parmeshvar Narayan Mahthab Rai Bahadur (1918) 36 M.L.J. 215 p. 220 We think the same rule will apply under Order 34, Rule 6. In the present case it is not denied that the present claim against the mortgagor under the mortgage-deed is within time and is legally enforceable against him. A conditional personal decree for any balance should therefore have been passed against him in this suit.