1. This appeal arises out of an application made by the appellant under Order XXXIV, Rule 6, for a decree for Rs. 119-12-0. The mortgage was made in 1884. The suit thereon was brought in 1909 and resulted in a preliminary decree for sale under Order XXXIV, Rule 4, passed by this Court in May 1910. The amount declared due on account of principal, interest and costs was Rs. 696-4. This included a sum of Rs. 61 on account of costs in this Court and a sum of Rs. 58-12 on account of costs in the lower Appellate Court. Costs of the first Court were not allowed.
2. In due course an order absolute was. Made and the property was sold for Us. 560, leaving a balance of Rs. 136-4. The appellant then applied for a decree under Rule 6 for Rs. 119-12, i. e., the amount allowed for the costs of two Courts. His case is that although the balance of the amount found due on account of principal and interest is not legally recoverable from the respondent, the a-mount found duo for costs is so recoverable inasmuch as the respondent first became liable for the costs in 1910.
3. The Courts below have disallowed the application.
4. The question is whether there is any ground or principle on which the appellant may say that the costs have not yet been recovered and are part of the balance of Rs. 136-4-0.
5. The appellant relies upon the decision of Piggott, J., in Jwala Sahay v. Dhanan 11 O.C. 377. In that case a decree for sale had been passed on two mortgages. As regards one of them the personal remedy was barred at the date of the suit. A balance remained duo after the sale of the mortgaged' property and the decree-holder was held to be entitled to say that the balance should be treated as forming part of the amount found due on the mortgage in respect of which the personal remedy was not barred by limitation, on the principle that a creditor receiving money from his debtor may in the absence of a specific understanding to the contrary credit it in such manner as suits him best.'
6. The respondent contends that the rule regarding the appropriation of payments is to be found in sections 59, 60 and 61 of the Contract Act, that it applies only when the debtor makes a payment himself and that it cannot be said that there were several distinct debts in the present case.
7. There appears to be no authority for the first of these contention. On the contrary there are several English cases in which the creditor has been allowed to appropriate payments in such a way as to suit himself, where the payments were made not by the debtor himself but by a surety few the debtor or out of a fund in Count. But for other reasons I am of opinion that the rule regarding the appropriation of payments does not apply to the case before me. It appears to me that the amount declared to be due under Order XXXIV, Rule 4, cannot be regarded as two distinct debts, one on account of principal and interest and the other on account of costs. If the amount declared to be due can be disintegrated in the way suggested by the appellant it of necessity follows that the defendant is entitled in a case of this kind to direct that the proceeds of the sale shall be devoted first to the discharge of so much of the amount declared to be due as is legally recoverable from him otherwise than out of the property sold. Nothing of this kind seems to have been contemplated by the Legislature. Forms Nos. 4 and 11 of Appendix D to the first Schedule to the Court of Civil Procedure seem to negative the idea that the amount declared due can be split up in the way now suggested. The costs allowed by the decree become part of the debt secured by the mortgage. Order XXXIV, Rules 3(3) and 8(3), make this quite clear in the case of a decree for foreclosure or for redemption and there appears to be no reason for holding otherwise in the case of a decree for sale. In the case before Piggott, J., there were two mortgages on which two different suits might presumably have been brought and there was probable ground for holding that there were two debts. The decree in that case is not sot out in the report. It may, as in some of the Forms given in Appendix D, have declared the amount due on each of the mortgage suits separately.
8. I am not prepared to extend the principle of that decision to the ease now before me.
9. I dismiss the appeal with costs.