1. The appellant had filed an application under Order 34, Rule 6, C.P.C. for passing of a personal decree against respondents 1 to 3. That application for personal decree was resisted by the 2nd respondent on the ground that the application was barred by time. The two courts below held that the application was barred by time. It was also held by the lower appellate Court that the application also was barred by reason of Explanation V to Section 11, C.P.C.
2. The facts leading up to this appeal may briefly be stated. The appellant will be referred to as the plaintiff in this appeal. The plaintiff filed O.S. No. 87 of 1962 on the file of the court of the Dist. Munsif, Gudivada. The suit was based upon a registered lease deed and a security bond executed for due performance of the terms of the lease. Preliminary and final decree were passed. The sale held in execution of the decree fetched a sum of Rs. 775 and part satisfaction of Rs. 711-25 was recorded. As the entire decree was not satisfied even by the sale of the property given as security, the present application was filed for the passing of a personal decree. It is stated that nearly Rs. 2,000 is still due. The mortgage and the security bond in question were executed on 12-10-1955 and registered on 14-10-1955. The time fixed for payment under the terms of the lease deed for payment of the first instalment was 15-2-1956. The plaintiff filed the suit on 13-3-1962 which is more than six years from the date of the bond as well as the date fixed for the payment of the first instalment of rent. Having regard to Art. 116 of the old Limitation Act, the suit should have been filed within six years in case the plaintiff sought a personal decree. Admittedly this was not done, I think it is unnecessary to refer to the various authorities cited. Suffice it to state that the Privy Council (sic) (Madras High Court?) in Tiruvadi Aiyengar v. Mutemmal Janaki 27 Ind Cas 770 = (AIR 1916 Mad 13) held that an application for a personal decree could be made even after six years from the date of the bond, provided the suit itself is filed within six years from the date of the bond. There can be no doubt that the right to a personal decree is barred by the date of the suit. The dates given above fully bear this out. No doubt, having regard to Art. 181 of the old Limitation Act (1908) it can be said that the application under Order 34, Rule 6, C.P.C. is within time, as the same has been filed within three years from the date of the confirmation of the sale. But, as pointed out by the lower appellate Court, this does not in any way help the appellant because the right to claim a personal decree was lost to the plaintiff even by the date of the institution of the suit, the period of six years having elapsed since the date of the bond. I, therefore, uphold the finding of the lower appellate Court that the application, I.A. No. 921/1967 is time-barred. This is sufficient to dispose of the appeal. But, however arguments were advanced on the question whether by reason of Explanation V to Section 11 C.P.C. the application is barred by res judicatas. The lower appellate Court held that it was so barred. The learned counsel for the appellant contends that the application is not barred by any principle of res judicata.
3. It is not disputed that the plaintiff in the plaint expressly prayed for the passing of a personal decree. It does not appear that any issue was framed or that any decision was given by the trial court with regard to this relief claimed in the plaint. It does not appear that the Court had ever applied its mind to this particular relief claimed in the plaint. There is also no mention about the right of the plaintiff to apply for a personal decree either in the preliminary decree or in the final decree. Explanation V to Section 11 C.P.C. states :
'Any relief claimed in the plaint which is not expressly granted by the decree shall, for the purpose of this section be deemed to have been refused.'
In the first flush, it appears that Explanation V is applicable to the facts of the case. Admittedly, the plaintiff had claimed the relief, viz., for a personal decree against the defendants and the decree passed does not show that it was expressly granted. That being so, it must be deemed to have been refused. If it must be deemed to have been refused, then quite obviously the principle of res judicata in Section 11 C.P.C. would apply. But on a careful consideration of the question, it appears to me that Explanation V to Section 11, C.P.C. has no application. Several authorities have considered the words 'relief claimed in the plaint' occurring in Explanation V to Section 11, C.P.C. The effect of those authorities is that the relief sought must legitimately form part of the claim in the suit. In other words, it must be something which the plaintiff may claim as of right. That is, something which the plaintiff may include in his cause of action and if the cause of action is established, the court would have no discretion to refuse. Is that the position here? In this case, the plaintiff had no cause of action in respect of a right to a personal decree as on the date of the suit. That cause of action for asking for a personal decree would arise only in future on the holding of a sale and the amount fetched at the sale being insufficient to satisfy the decree. Then the application under Order 34, Rule 6, C.P.C would lie. There is also the further requirement under Order 34, Rule 6 C.P.C. that the amount due to the plaintiff must be legally recoverable from the defendant. Having regard to Order 34, Rule 6, C.P.C. the stage at which a application for a personal decree could be made is only when the net sale proceeds of any sale held are found insufficient to pay the amount due to the plaintiff and the Court might then pass a decree for such balance, if the same is legally recoverable from the defendant, otherwise than out of the property sold. Quite patently this relief for a supplemental or a separate decree is independent of the claim in the suit, not as of right entitled to ask for a personal decree in the suit itself. As stated by me earlier, eventhough the plaintiff asked for it, as on the date of the plaint, the plaintiff had no sort of cause of action that date it could not be said or presumed that the secured property was or would be insufficient to satisfy the decree. The sufficiency or otherwise can only be determine after the sale is held.
4. There are two cases which had been brought to my notice by the learned counsel on this aspect. The first is the decision reported in Govindaswamy v. Kandasamy, AIR 1927 Mad 779 and the other is the case reported in Babu Ram v. Inam Ullah, AIR 1935 All 411. In the first case, the learned Judges constituting the Division Bench had rendered separate judgments. They concurred in the conclusion viz., that the fact that the personal remedy is asked for in the plaint and that nothing about it appeared in the decree is not sufficient to say that the plaintiff is for ever barred from asking for it. This decision was referred to and followed in Babu Ram v. Inam Ullah, AIR 1935 All 411. It was observed in this decision :
'Where the right of the plaintiff to obtain a personal decree has been decided the parties will be bound by such decision. But where there has been decision on the point, even though plaintiff had claimed for such a relief in the plaint, the plaintiff is not barred from claiming it under Explanation 5, Section 11. Explanation 5 would not apply unless the relief claimed was such as it was obligatory on a court to grant.
Since it is not obligatory for a Court to grant the relief in the nature of a personal remedy at the time of the original suit there is no question of any application of Explanation V to Section 11, C.P.C. Mulla's Civil Procedure, Thirteenth Edition at page 105 relies upon the above Madras and Allahabad cases and contains the ft statement of the law : 'Where a plaint in a mortgage suit contains a prayer for a personal decree, but the preliminary decree is silent about it, the plaintiff is not precluded from applying for a personal decree under Order 34, Rule 6, C.P.C. for the balance of the mortgage claim after the sale of the mortgaged property, as such a decree could not properly be passed until after sale.'
5. In view of the foregoing discussion, I do not agree with the view of the lower appellate Court that the application of the plaintiff under Order 34, Rule 6, C.P.C. is barred by reason of Explanation V to Section 11, C.P.C. This conclusion of mine, however, cannot help the appellant-plaintiff because I have earlier held that the application is barred by time.
6. So far as respondents 2 to 5 are concerned, they were not executants of the security bond. Non-executants are clearly not bound to personally satisfy the decree passed. If the plaintiff has failed to have his decree satisfied by the sale of the charged property, he cannot have any remedy personally against the non-executants of the bond.
7. It follows that this second appeal must fail and it is accordingly dismissed. In the circumstances, there will be no order as to costs.
I must, however, thank Mr. A.L. Narayana Rao, who filed a Vakalat only on behalf of the 2nd respondent (the other respondents have not appeared) for having helped me with his assistance in dealing with the contentions raise by the learned counsel for the appellant.
8. Appeal dismissed.