GOURI AMBAL ACHI Vs. PAVVRRAMANATHAN CHETTIAR

JUDGEMENT

(1.) This case raises a point of some novelty. The respondent filed a suit to enforce a mortgage. He impleaded as defendants Gowriambal Achi, the present appellant, her son and granason. I extract the following passage from the judgment passed in that suit in April 1924. It appears to me that as a suit to enforce a mortgage, the suit must fail. Gowriambal Achi has no title to the property. The properties were left by Will absolutely to Gowriambal's mother, It was recited, that on the latter's death Gowriambal was to succeed to any of the properties which her mother had not alienated. Gowriambal's mother is still alive, and Gowriambal may never succeed to any of this property. I do not see how Gowriambal by her deed can create any charge on the property." On this reasoning, Mr Stodart, the District Judge, passed the following decree: I give the plaintiff a decree for the sum claimed Rs. 6,500 with simple interest at the contract rate, namely, 12 per cent, on Rs. 6, 168, This is a simple money decree against the 1 defendant Gowriambal alone. The suit against the 2nd and 3 defendants is wholly dismissed.

(2.) We are not now called to construe the Will referred to in the passage above, nor is it a part of the record before us. Nor are we at present concerned with the question whether the judgment is right or not; for the plaintiff submitted to it and it became final between the parties.

(3.) Subsequent to the passing of the decree, Gowriambal Achi's mother died and the plaintiff assumed (whether rightly or wrongly, it is needless to enquire) that she became absolutely entitled to the properties covered by the mortgage. In that view, he applied to execute the money decree passed in his favour by attachment and sale of those properties. The defendant Gowriambal Achi) opposed the plaintiff's application, urging that it contravened the provisions of Order XXXIV, Rule 14, Civil Procedure Code, and that the plaintiff's remedy was by way of a regular suit. This objection was overruled and the plaintiff was allowed to execute his decree. The order dated 10 November, 1926, then made on Gowriambal Achi's petition requesting that the plaintiff's application might be rejected, may be reproduced. The decree is very clear. It was held that the mortgage was not enforceable. As the mortgagor, i. e., the judgment-debtor, had no right to the property mortgaged, only a simple money-decree was passed. In execution of this simple money- decree, the properties which were originally mortgaged and to which the judgment debtor became entitled by inheritance subsequently are attached and are brought to sale. Order XXXIV, Rule 14 has no application. There is no mortgage subsisting and the claim did not arise out of the mortgage. Decree-holder need not file a fresh suit. Petition is dismissed with costs.