Skip to content


Hanmant Timaji Desai Vs. Raghavendrarao Gururao Desai - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Case NumberFirst Appeal No. 157 of 1921
Judge
Reported in(1922)24BOMLR410; 67Ind.Cas.847
AppellantHanmant Timaji Desai
RespondentRaghavendrarao Gururao Desai
DispositionAppeal allowed
Excerpt:
.....the decree-holder could recover the whole amount of the decree then due by sale of the mortgaged property. the first instalment which became due in 1916 was paid up. the next one of 1917, not having been paid, the decree-holder applied to recover its amount by attaching other property of the judgment-debtor. in the meanwhile, three more instalments were paid up; they were applied towards the years 1918, 1919 and 1920:-;that it was the duty of the court, when instalments were paid, to appropriate them to the earliest instalment unpaid, unless at the time the payment was made the instalment was already barred by limitation.;where a decree only gives the mortgagee a remedy against the mortgaged properties the personal remedy on the money claim against the mortgagor being barred,..........paid, the plaintiff applied in july 1918 for execution of the decree by selling a portion of the mortgaged property to realize the amount of the second instalment. the defendant contended that the property could not be sold unless two instalments were in arrears, and the matter came up to the high court on appeal from the decision of the subordinate judge allowing execution to proceed: hanmant v. raghavendra : (1920)22bomlr650 . it was held that the application for execution was premature. but from the judgment of mr. justice shah it might be inferred that the court was of opinion that a suit might have been filed to recover rs. 1,300, the instalment clue, and in that suit a decree might be obtained for sale of the mortgaged property or sufficient to satisfy the payment of the.....
Judgment:

Norman Macleod, C.J.

1. The plaintiff obtained a decree on an award on the 8th October 1915, whereby it was directed that the defendants should pay to the plaintiff Rs. 14,000 by eleven instalments; that the first ten instalments were to be paid by annual instalments of Rs. 1,300 each, and the last instalment was to be one of Rs. 1,000; that the defendants should pay the instalment every year on 1st August to the plaintiff; that the first instalment was to be paid on 1st August 1916; that if the defendants failed to pay any two instalments out of the said instalments, the said two instalments should be paid within six months from the date of default to pay the second instalment; and that in case of failure to pay the said two instalments within six months accordingly, the plaintiff should recover the whole amount of the said two instalments and the future instalments that remained unpaid on that day, and costs, by sale of the property mentioned in the deed of mortgage without possession.

2. The date of the mortgage on which the decree was passed was 8th September 1904. It is quite clear that any personal remedy against the mortgagor would be barred by limitation. The first instalment was paid on the 1st August 1916, but the second one not having been paid, the plaintiff applied in July 1918 for execution of the decree by selling a portion of the mortgaged property to realize the amount of the second instalment. The defendant contended that the property could not be sold unless two instalments were in arrears, and the matter came up to the High Court on appeal from the decision of the Subordinate Judge allowing execution to proceed: Hanmant v. Raghavendra : (1920)22BOMLR650 . It was held that the application for execution was premature. But from the judgment of Mr. Justice Shah it might be inferred that the Court was of opinion that a suit might have been filed to recover Rs. 1,300, the instalment clue, and in that suit a decree might be obtained for sale of the mortgaged property or sufficient to satisfy the payment of the instalment in arrear. With due respect we doubt very much if that was a correct reading of Order XXXIV, Rule 14, Civil Procedure Code.

3. But at present we are concerned with a later Darkhast taken out by the plaintiff by which he sought to recover the instalment which fell due on the 1st August 1917 by attaching other property of the defendant, namely, the decree which he had obtained against one Shrinivas Murhar in the Court of Haveri. The Judge said 'the most important question which I have to decide is, therefore, whether plaintiff can proceed now against the persons of the defendants, or their property other than that mortgaged to him in Exhibit 4,' and he found that the plaintiff was entitled to recover the amount claimed either from the persons of the defendants or from any of the property of theire excepting the mortgaged property in Exhibit 4.

4. It was eventually found that the decree which was attached had been fully satisfied. Therefore in the ordinary course the Darkhast would fall to the ground. But the point decided against the defendants was that in the case of any one instalment remaining unpaid after the due date, the plaintiff could execute against the persons of the defendants or against any property belonging to them, other than the mortgaged property. That is an important question, and it appears to us that it was wrongly decided by the Court below.

5. It seems clear that where the decree only gives the mortgagee a remedy against the mortgaged property, the personal remedy on the money claim against the mortgagor being barred, the only way in which the mortgagee can recover his money is by sale of the mortgaged property. The decree directs that execution should only issue against the mortgaged property in the event of two instalments being in arrears for six months, and it may be that if one instalment remains in arrear, and the plaintiff may be running the risk of losing that instalment, he would be entitled to file a suit for the payment of that instalment, which could be recovered by sale of the mortgaged property; and it seems if the decree is construed strictly that would be the only way in which he could recover the last instalment, the others having been duly paid, since it could not be said that two instalments were in arrears, as that was the sole condition under the decree on which the sale could be directed.

6. However it is not necessary to decide that point at present. But it seems that although four instalments had been paid under the decree, the last throe instalments had been credited to the instalments for 1918, 1919 and 1920, leaving the instalment for 1917 still unpaid. The result might be that recovery of that instalment, if the remaining instalments were paid according to due dates, would become barred entirely, and we do not think that that was the intention of the Court when the decree was drawn up. It would be the duty of the Court, when instalments are paid, to appropriate them to the earliest instalment unpaid. The debtor cannot allow such earlier instalment to remain unpaid, unless at the time he makes the payment the instalment was already barred by limitation. It seems to us, therefore, that this decree should be considered as if instalments up to 1919 had been paid, and the instalment for 1920 remained due. Any instalment paid hereafter will be appropriated according to date, so that as soon as two consecutive instalments are in arrears, then the plaintiff will be entitled to execute by sale of the mortgaged property. The appeal will be allowed and the Darkhast will be amended according to this judgment so as to show that the instalment for 1920 is in arrear, and not the instalment for 1917. The fresh Darkhast now filed should also be amended according to this judgment. The appellant to get costs of the appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //