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Nalakath Pareekutty Haji Vs. Cheracham Veettil Putham Purayil, Mariyakutty Umma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 484 of 1962
Judge
Reported inAIR1967Ker236
ActsCode of Civil Procedure (CPC) , 1908 - Order 34, Rule 7 and 7(1)
AppellantNalakath Pareekutty Haji
RespondentCheracham Veettil Putham Purayil, Mariyakutty Umma and ors.
Appellant Advocate V. Balakrishna Eradi and; K.P.G. Menon, Advs.
Respondent Advocate K. Raghavan Nair, Adv.
DispositionAppeal dismissed
Cases Referred and Amir Haidar v. Ali Ahmad
Excerpt:
.....mortgaged property - decree passed unambiguously giving right to legal representative to realise costs personally from plaintiff - terms of decree clear to make plaintiff personally liable for costs decreed in favour of defendant - appeal dismissed. - - though the words used in the decree of the appellate court may lend themselves to the construction that the judgment debtor was personally liable the real meaning must be found in the judgment and decree as interpreted in accordance with the rules of order 34. the court must be deemed to have intended what the law enjoins it to do as a general rule and the party, which contends that a departure from the general rule was intended, must clearly establish its contention from the words used in the judgment and in the decree following..........on 4-8-1956 to respondents 6 to 12. respondents 6 to 12 filed execution petition for realising the costs decreed to them in the appeal and the second appeal personally from the plaintiff. the plaintiff resisted the execution petition on the ground that the decree for costs is not executable and they should be added on to the mortgage amount and cannot be recovered separately. the learned munsiff upheld the contention of the plaintiff and dismissed the execution petition. the learned appellate judge differed from the learned munsiff holding that the decree for costs is executable. the decree of the trial court was in these terms. 'it is hereby ordered and declared that the amount due to the first defendant on the mortgage mentioned in the plaint is the sum of rs. 2.000 for principal and.....
Judgment:

Krishnamoorthy Iyer, J.

1. The plaintiff who was directed to pay the costs of the legal representatives of the first defendant in the appeal and the second appeal which arose out of a suit for redemption of a mortgage is the appellant. One Moldunni Hall had executed a usufructuary mortgage in respect of the plaint schedule properties in favour of the first defendant for a sum of Rs. 2,000. The properties were taken back on lease by the mortgagor. The plaint A schedule properly comprised in the mortgage deed was assigned to the plaintiff and the plaint B schedule property comprised therein was assigned to the 6th defendant The plaintiff filed the suit for redemption of the mortgage impleading the first defendant and the 5th defendant. The trial Court passed a joint decree for redemption in favour of the plaintiff and the 5th defendant and directed the parties to the action to hear their costs. Against the decree the plaintiff filed A S 280 of 1948 During the pendency of the appeal the first defendant died and the legal representatives were impleaded us additional respondents 6 to 12 The appeal was dismissed and the plaintiff was directed to pay the costs of respondents 6 to 12. Thesecond appeal 268 of 1951 preferred by the plaintiff was also dismissed with costs on 4-8-1956 to respondents 6 to 12. Respondents 6 to 12 filed execution petition for realising the costs decreed to them in the appeal and the second appeal personally from the plaintiff. The plaintiff resisted the execution petition on the ground that the decree for costs is not executable and they should be added on to the mortgage amount and cannot be recovered separately. The learned Munsiff upheld the contention of the plaintiff and dismissed the execution petition. The learned Appellate Judge differed from the learned Munsiff holding that the decree for costs is executable. The decree of the trial Court was in these terms.

'It is hereby ordered and declared that the amount due to the first defendant on the mortgage mentioned in the plaint is the sum of Rs. 2.000 for principal and the purappad and interest on the lease back till 1128 inclusive is the sum of Rs. 1,938-12-0 making in all the sum of Rs. 3,938-12-0.

And it is hereby ordered and decreed that the plaintiff and fifth defendant together on depositing into Court the above said sum of Rs. 3,938-12-0 the mortgage over the plaint A and B schedule properties be extinguished and the first defendant, shall if so required reconvey or retransfer the said properties free from the said mortgage and clear off and from all incumbrances created by the first defendant or any person claiming under him or any person under whom he claims and shall if so required, deliver up to the plaintiff and fifth defendant quiet and peaceable possession of the plaint A and B schedule properties described below.

The plaintiff be at liberty to proceed against fifth defendant and his properties in separate proceedings if such a contingency arises.

That the parties do bear their respective costs. The appellate decree directed as follows.

'That the decree of the lower Court be and the same hereby is confirmed and this appeal and the memorandum of cross objections dismissed.

That the appellant do pay respondents 0 to 12 Rs 81-8-0 for costs in this appeal and do bear his own.

That the parties do bear their costs in the memorandum of cross-objections.' The decree passed in second appeal was as follows: 'and this Court doth further order and decree that the appellant (plaintiff) do pay to the respondents 9 to 11 (Legal representatives of the 1st defendant). Rs. 128-2-7 for their costs in opposing this second appeal'

2. The learned Advocate for the appellant contended that the costs decreed in favour of the legal representatives of the first defendant who are the mortgagees should be added on to the mortgage amount as the costs from part of the price of redemption and the decree for costs is not executable.

3. In A. S. 424 of 1968, which we decided the question arose whether the costs allowed by the preliminary decree passed under Order 4, Rule 7, C.P.C, in a suit for redemption and also by the decree in appeal filed against the preliminary decree can be recovered by the appellant from the mortgagor personally. We took the view on an interpretation of the preliminary decree, that the costs decreed by the trial Court were not recoverable in execution since they were made part of the price payable for redemption and since there was no clause in the decree authorising the appellant to execute the decree for costs. We therefore observed that in respect of the costs decreed by the trial Court the appellant will have to work out his rights under Order XXXIV, and that he could execute the decree for costs passed by the appellate court. The learned Advocate for the appellant contended that our decision that the costs decreed in an appealagainst a preliminary decree for redemption can be recovered in execution personally from the mortgagor judgment-debtor is opposed to the decision in Rama Rao v. Rajeswar Rao, AIR 1948 Pat 127, and requires reconsideration

4. The Head-note of the decision in AIR 1948 Pat 127 is as follows:

'Rule 35 of Order 41 must be read as subject to the provisions of Order 34 which makespecific provisions as to costs in a suit on a mortgage: whereas Rule 35 speaks of a decree in appeal generally Hence, the general rule in a mortgage action is that costs incurred by the mortgagee form part of the mortgage decree unless there is a specific direction that the whole or part of those costs shall be payable personally by some or other of the judgment debtors. Though the words used in the decree of the appellate court may lend themselves to the construction that the judgment debtor was personally liable the real meaning must be found in the judgment and decree as interpreted in accordance with the rules of Order 34. The Court must be deemed to have intended what the law enjoins it to do as a general rule and the party, which contends that a departure from the general rule was intended, must clearly establish its contention from the words used in the judgment and in the decree following thereunder.'

5. The decision in AIR 1948 Pat 127, turned on an interpretation of the provisions of Order 34, Rules 2, 4, 5 and 10 and the question considered was whether costs under a decree passed in a suit for foreclosure or for sale can be realised personally from the judgment debtors in the absence of a specific direction in the decree to that effect. The question whether costs allowed by a decree passed in a suit for redemption or in the appeal arising therefrom could be realised in execution of the decree, did not arise for consideration. The learned Advocate for the appellant therefore cannot draw any support from the said derision for his contention

6. In most of the decisions cited before us by the learned Advocate for the appellantthe question arose whether an order for costs in suits on mortgage coming under Rules 2, 3, 4 and 6 of Order 34 of the Code of Civil Procedure can be executed against the mortgagor personally before proceeding against the mortgaged properties. The decision in AIR 1948 Pat 127, represents the view taken by the Patna High Court. The views expressed by the Allahabad and the Calcutta High Court seem to be that an order for costs in a mortgage suit for sale or for foreclosure is as a rule a part of the mortgage decree and that the decree-holder should proceed against the mortgaged properties in the first instance for recovery of such costs before he can proceed against the mortgagor personally as is borne out by Order 84, Rules 2, 3, 4, 5 and 10 but the Court may in appropriate cases make an order for costs in mortgage suit which shall be recoverable from the mortgagor otherwise than out of the mortgaged properties. These decisions further held that the right and discretion of the Court to make an order for costs personally against the mortgagor is as much a part of Section 35, C.P.C. as that which requires costs to he added to the security and the mere absence of words that the decree it made personally against the mortgagor is not at all conclusive and the terms of the decree itself and other circumstances of the case have to be examined to show whether a personal decree was intended. In Amina Bibi v. Ram Shankar Misra. ILR 41 All 473=(AIR 1919 All 297), Walsh J observed:

'The ordinary penalty of an unsuccessful appellant is that he must personally pay the costs of his appeal. There is no reason or principle why an exception should be made in favour of mortgagors, It would be very much against the interests of the mortgagors if it were so, because were there such a recognized principle in every appeal brought by a mortgagor, a mortgagee, it seems to me, would have an irresistible claim for security for costs, otherwise he would be compelled to run the risk of the dilatory and obstructive proceedings of the mortgagor exhausting the value of the security, and being left in the cold as regards the costs which the law clearly contemplated he ought to recover. Nor is there any reason why the right of the mortgagee to recover the cost of the failure of an unsuccessful appeal by a mortgagor should be held to be limited to either one or other of his alternative remedies or against the mortgaged property The ordinary rule in equity is that a mortgagee is entitled to recover against a mortgagor all the costs and expenses of maintaining or enforcing the security provided he acts reasonably and according to law, and further to add them to his security, that is to say, he is given both remedies, the personal remedy against the debtor and, the remedy in specie against his security Section 35 of the Code provides that costs shall be in the discretion of the Court, but that when they do not follow the event the Court shall state its reasons The event in the case of unsuccessful appeal by the mortgagor is obvious. By bringing the appeal at all he has impliedly undertaken, and made himself liable personally, to pay any expenditure which his failure may throw upon the opponent And speaking for myself, and I think my brother agrees, it seems to me that the burden is upon an unsuccessful appellant, if he wants to excludeany alternative under which he may be eventually made responsible for the payment of the costs which the law intends in the ordinary course he shall pay to make an application to the Court dismissing his appeal for that purpose, and to see to it that the decree makes it clear that that head of liability is expressly excluded And it ought to be clearly understood and cannot be too strongly impressed upon members of the Bar in such cases to see to it that the decree ultimately drawn up is drawn up in accordance with the recognised principle which I have just enunciated and the decree-writers in the office ought to pay particular attention to this matter In our opinion the plaintiffs, now known in the High Court's decree as the respondents, should get their costs against the appellant, and the decree renders the appellant personally liable for the same '

7. The other learned Judge, Piggot J., who concurred with the observation made above observed as follows:

'In a suit on a mortgage no one denies that the plaintiff is entitled to add to his mortgage debt and to recover as against the mortgage security any costs to which he may be put in enforcing the said security. I do not think that Order XXXIV, Rule 10, of the Code of Civil Procedure does anything more than recognise this principle As regards the costs incurred in prosecuting or defending an appeal against a preliminary decree for sale. I think some learned Judges of this Court have used language suggesting a doubt as to whether such costs arc covered at all by the provisions of Order XXXIV Rule 10, abovementioned, but I do not understand that the general principleas to the right of the mortgagee to claim to have these costs included in the final decree for sale against the property, where such final decree is sought and obtained after the decision of the appeal in which those costs were incurred has been doubted At the same time this Court has. I think consistently followed the rule that it is within the discretion of an appellate court dealing with an appeal against a preliminary decree in a mortgage suit, to award costs as a personal money decree against a single judgment-debtor or group of judgment-debtors. In some cases that would seem the most equitable thing to do. and if the mortgagee himself as in the present case, desires for obvious reasons to have a personal decree in respect of such costs, and not a decree enforceable against a security which has been found insufficient for the satisfaction of the original mortgage debt, there is certainly no reason in law why he should not obtain a personal decree If these propositions of law are sound, as I believe them to be then the question in the present case, as in many other reported cases, resolves itself into one of the interpretation of the decree actually passed by the appellate court.'

8. We are of the view that the above decisions are not strictly applicable to the case before us The decree in execution of which the proceedings have come up before us is one out of a decree for redemption and recovery of possession. The plaintiff by the terms of the decree was directed to deposit the price of redemption and recover possession of the mortgaged property. There is no decree in favour of the 1st defendant or his legal representatives for sale or for foreclosure which can be worked out against the properties by taking out execution. The decisions in Sheodarshan Singh v. Beni Chaudhari, AIR 1926 All 492 and Amir Haidar v. Ali Ahmad, AIR 1925 All 424, cited by the appellant are not of any use in the derision of the question raised by him. The question that arose for consideration in those decisions was not in regard to the right of the successful party to execute the decree for costs in a suit for redemption of a. mortgage but the question decided was whether costs also has to he deposited by the mortgagor as part of the redemption price before recovery of possession. In AIR 1925 All 492, it was held that it is certainly competent to the Court in exercise of its discretion to award costs personally against the mortgagor; but where the terms of the decree are ambiguous it ought not to be construed in such manner so as to enable the mortgagee to realise costs personally from the mortgagor. Therefore the decision turned upon the interpretation of the decree.

9. In the case before us the decrees passed in appeal and the second appeal unambiguously give a right to the legal representatives of the first defendant to realise the costs personally from the plaintiff. If the position contended for by the appellant is accepted, the result will be that if the plaintiff does not pay the redemption price inclusive of costs decreed the respondents will not be in a position to realise the costs in execution of the decree. We do not think that intendment of Order 34. Rule 7, is as was contended by the learned Advocate for the appellant. The decrees in the case before us are not preliminary decrees under Order 34, Rule 7 They are decrees for redemption and recovery of possession and the decrees passed by the appellate courts do allow the legal representatives of the 1st defendant to realise the costs personally from the plaintiff The provisions of Order 34. Rule 7(1)(c)(ii) do not apply in a usufructuary mortgage and therefore the usufructuary mortgagee cannot apply for a final decree in default of payment by the mortgagor None of the cases cited at the bar on behalf of the appellant related to a decree for redemption of a usufructuary mortgage There is no decree for sale of the mortgaged property for the recovery of the mortgage money in which case at least a contention can be advanced that the costs should be recovered primarily from the mortgagedproperty. The legal representatives of the first defendant do not contend for the position that the costs have been made a charge upon the property mortgaged and there is no prayer for the recovery of costs by the sale of the mortgaged properly. The decrees are very clear to make the plaintiff personally liable for the costs decreed in favour of the respondents

10. In the result, the appeal is withoutsubstance and is dismissed with costs


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