GANESWAR PARIDA Vs. HARISH CHANDRA DUTTA

JUDGEMENT

(1.) This appeal is by the defendant and arises out of a suit to enforce a mortgage executed by the appellant in favour of the respondent. The plaintiff mortgagee sued for the sale of the mortgaged property and also prayed that in the event of the sale proceeds being insufficient to satisfy the debt a personal decree should be passed against the mortgagor. The suit was compromised and the compromise decree provided that in the event of the decretal dues not being satisfied by sale of the mortgaged properties the decree-holder would be entitled to recover the balance from the person and other properties of the mortgagor.

(2.) Before that decree could be executed the mortgagor's coparceners instituted a suit in which they prayed for a declaration that the mortgage was invalid for want of legal necessity. That suit was decreed exparte and the mortgagee-decree- holder was restrained from executing the decree which he had obtained. He then applied under Order 34, Rule 6, for a personal decree against the mortgagor- judgment-debtor. Both the Courts below have agreed in granting this application. On behalf of the mortgagor it is contended that as the mortgaged property has not been sold Rule 6, of Order 34, has no application and no personal decree can be passed.

(3.) In other words, the contention of the mortgagor is that the mortgagee has no right to recover the mortgage debt from the person of the mortgagor until the mortgaged property has been put up to sale and has failed to realize the amount necessary to satisfy the debt. This contention has been negatived in Bisheshar Nath V/s. Chandu Lal in which a Division Bench of the Allahabad High Court held that where property, the subject of a suit for sale on a mortgage, has ceased to be available for sale owing to no fault of the mortgagee, the latter is entitled to a personal decree, the whole right to which the mortgagee has had all along, but which right has merely been suspended owing to the fact that his remedy against the mortgaged property was not yet shown to have been exhausted or to be otherwise unavailable.