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Keshav Manja Bhat Vs. Govind Naga Bhat - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 641 of 1921
Judge
Reported inAIR1923Bom32; (1922)24BOMLR843; 75Ind.Cas.188
AppellantKeshav Manja Bhat
RespondentGovind Naga Bhat
DispositionAppeal allowed
Excerpt:
mortgage-personal covenant by mortgagor-decree in favour of mortgagee for sale of mortgaged properly- form in which the personal decree against the mortgagor should be passed.;a decree in a mortgage suit, when the mortgage deed contains a personal covenant, should direct that 'if there is any deficit the mortgagee should be at liberty to apply for a personal decree for the balance against the mortgagor.' it is not proper, in such a case, to direct that in default of payment of the decretal amount the plaintiff is to be at liberty to recover the same by applying for sale of the mortgaged property and to recover the deficit, if any, from the defendants personally. - - 3. it is difficult to imagine how a personal covenant could be more clearly expressed......should direct 'that if there is any deficit the mortgagee should be at liberty to apply for a personal decree for the balance against the mortgagor.'2. in appeal the learned district judge thought that the terms of the mortgage did not include or imply a personal covenant, and, therefore, the decree was amended by the excision of the last clause. we may mention that under order xxxiv, rule 6, of the civil procedure code, it is provided that where the net proceeds of any such sale are found to be insufficient to pay the amount due to the plaintiff, if the balance is legally recoverable from the defendant otherwise than out of the property sold, the court may pass a decree for such amount. therefore it is contemplated that a personal decree is passed only when it is found that the net.....
Judgment:

Norman Macleod, C.J.

1. The plaintiff sued to recover Rs. 542-9-0 being the balance on a mortgage bond passed by the defendants on the 22nd May 1915, together with future interest and costs by sale of the mortgaged property or against the defendants personally. The learned Subordinate Judge passed a decree in favour of the plaintiff directing that the money should be paid with interest within six months from the date of the decree. In default of payment of the decretal amount the plaintiff was to be at liberty to recover the same by applying for sale of the mortgaged property or sufficient portion thereof subject to the provisions of Section 15B, Clause (2), of the Dekkhan Agriculturists' Relief Act, and to recover the deficit, if any, from the defendants personally. That is a form of the decree which it is not desirable to pass in mortgage suits, because it cannot be known until the mortgaged property has been sold whether there will be a deficit and if there is a deficit what the amount will be. A decree in a mortgage suit when the mortgage contains a personal covenant should direct 'that if there is any deficit the mortgagee should be at liberty to apply for a personal decree for the balance against the mortgagor.'

2. In appeal the learned District Judge thought that the terms of the mortgage did not include or imply a personal covenant, and, therefore, the decree was amended by the excision of the last clause. We may mention that under Order XXXIV, Rule 6, of the Civil Procedure Code, it is provided that where the net proceeds of any such sale are found to be insufficient to pay the amount due to the plaintiff, if the balance is legally recoverable from the defendant otherwise than out of the property sold, the Court may pass a decree for such amount. Therefore it is contemplated that a personal decree is passed only when it is found that the net proceeds of sale of the mortgaged property are insufficient to pay the mortgage amount. We think that the decision of the learned District Judge was wrong. The words of the mortgage-deed are as follows:

In case the instalments be not paid at the time fixed, but we keep the same unpaid, we will pay the amount with interest on the amount of instalments that may remain unpaid at the rate of Rs. 9-6-0 per cent. per year that may accrue up to the time of recovery, and even if two instalments be not paid at the time fixed, without putting forward the excuse of future instalments we are liable to pay in one lump sum the amount also of all the future instalments with interest at the rate mentioned above.

3. It is difficult to imagine how a personal covenant could be more clearly expressed. Therefore the appeal must be allowed, but we amend the decree of the trial Court as follows : Strike out the words 'and to recover the deficit, if any, out of the personal property of the defendants and the defendants personally' and in their place put the following words 'If the net proceeds of the sale are insufficient to pay the amount due to the plaintiff, then the plaintiff to be at liberty to apply for a personal decree against the defendants for the amount of the deficit.' That is obviously the right order, because until the mortgaged property is sold, it is impossible to ascertain what is the amount for which a personal decree can be passed. The appellant must get his costs in this Court and in the Court below.


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