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Tulshi Prasad Vs. L. Dip Prakash and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All631
AppellantTulshi Prasad
RespondentL. Dip Prakash and ors.
Excerpt:
- - like these. we are clearly of opinion that the lower appellate court took a correct view in applying order 34, rule 6, to the circumstances of the present case. under these circumstances, we are satisfied that the decree passed by the lower appellate court is correct in every respect......being passed against him. the lower-appellate court overruled his objection and passed a simple money decree against him jointly with others. hence this second appeal.2. it is contended by the learned advocate for the appellant that a decree under order 34, rule 6, civil p. c, cannot be passed except as against the mortgagor, i. e., one who had interest in the hypothecated property the sale of which has already taken place. it is argued that in so far as no more than a personal undertaking had been given by the executants other than asaf ali, a simple money decree should have been passed in the first instance against them and no decree under order 34, rule 6, would in that case be necessary. assuming that a composite decree of this kind could have been passed in the first instance, we.....
Judgment:

Niamatullah, J.

1. This appeal arises out of proceedings under Order 34, Rule 6, Civil P.C. The appellant is the son and legal representative of one Ram Narain. It appears that Asaf Ali who owned certain properties, executed a deed of simple mortgage on 20th August 1918, hypothecating his property, in favour of the present respondents. Five other persons, including Ram Narain, joined as executants of that deed, though they had no interest in the mortgaged property and were in fact only sureties. The deed makes it clear that they are personally liable for the debt contracted by Asaf Ali. The respondents instituted a suit for sale of the mortgaged property under Order 34, Rule 4, Civil P..C., impleading all the executants or their representatives in interest, obtained preliminary and final decrees and had the mortgaged property sold. The sale proceeds proved to be insufficient for satisfaction of the mortgage money. They then applied, under Order 34, Rule 6, Civil P.O. for a personal decree being passed against the executants of the mortgage deed or their representatives in interest. The present appellant objected to a personal decree being passed against him. The lower-appellate Court overruled his objection and passed a simple money decree against him jointly with others. Hence this second appeal.

2. It is contended by the learned advocate for the appellant that a decree under Order 34, Rule 6, Civil P. C, cannot be passed except as against the mortgagor, i. e., one who had interest in the hypothecated property the sale of which has already taken place. It is argued that in so far as no more than a personal undertaking had been given by the executants other than Asaf Ali, a simple money decree should have been passed in the first instance against them and no decree under Order 34, Rule 6, would in that case be necessary. Assuming that a composite decree of this kind could have been passed in the first instance, we are unable to hold that the language of Order 34, Rule 6, Civil P. C, precludes the Court from passing a decree on the sale proceeds proving insufficient for satisfaction of the mortgage money. All that that rule requires is that the balance should be legally recoverable from the defendant otherwise than out of the property sold. It is not disputed that, so far, at any rate, as Ram Narain was concerned, the whole of the mortgage money which would, of course, include the balance, was personally recoverable from. him. We find nothing in any rule, of law which prevents the mortgagee; from obtaining a personal decree under Order 34, Rule 6, Civil P. C, in circumstances: like these. The liability of a surety is in general, co-extensive with that of the principal debtor. Indeed Ram Narain made himself one of the principal debtors by joining in the execution of the bond. The learned advocate for the appellant has not been able to refer us to any authority in support of his contention. We are clearly of opinion that the lower appellate Court took a correct view in applying Order 34, Rule 6, to the circumstances of the present case.

3. It is next contended that the son of Ram Narain, as the appellant is, is not. responsible for surety debts of his deceased father who, it is not disputed, was a member of a joint Hindu family with the appellant. So far as this Court is concerned, it is settled law that ordinarily a son is liable for the surety debt of his father, unless it is shown that the debt is tainted with immorality. It is not suggested that such is the case here. Under these circumstances, we are satisfied that the decree passed by the lower appellate Court is correct in every respect. It is accordingly upheld and this appeal is dismissed with costs, including fees in this Court on the higher scale.


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