1. This is a suit for sale brought by the mortgagee against the mortgagor 1st defendant, and his three sons, defendants 2, 3, 4. The Lower Court decreed the suit, and after the hypotheca had been sold under the decree, the plaintiff applied for a personal decree against the 1st defendant for the balance still due under the mortgage and costs, and against defendants 2 and 3 for the amount due for costs. The Lower Court has granted a personal decree against defendants 2, 3, 4 and hence the appeal. The point taken is, that once the amount due under the mortgage, the subsequent interest and costs, have been amalgamated into one sum, and the hypotheca has been sold, it is not open to the plaintiff to assume that costs are part of the remaining balance, or to ask for a personal decree for costs as though they were still legally recoverable from the defendant as provided by Order 34, Rule 6. It is not contended that in no case can defendants who are not personal parties to the mortgage be held personally liable for cost's. That, under Section 35, Civil Procedure Code would be within the Court's discretion. (Cf. Ramakrishna Aiyar v. Raghunatha Aiyar (1930) 33 L.W. 263) But it is contended that unless in its preliminary decree the Court exercises its discretion, it is too late for the plaintiff to apply after the amalgamation of the amounts due by way of mortgage, interest and costs, and the subsequent sale.
2. The same point is, taken in Venugopalachariar v. Padmanabha Row (1915) 29 M.L.J. 120 where the non-mortgagor 2nd defendant concedes that costs are legally recoverable from him under the decree but contends that there is no admissible assumption that the portion of the decree amount unsatisfied by the sale represents costs and not the mortgage money. While admitting (p. 121) that in England this assumption is warranted, this Bench felt constrained by Indian Statute Law to take a contrary view. It was impressed by the circumstance that in Appendix D under Order 34, Rule 6 a form of decree against a mortgagor personally is provided; but this would almost assume that Appendix D is exhaustive. Can it be said that no decree can be passed for which Appendix D provides no form, or that the decretal rules in the Code are restricted to such decrees as may be found in Appendix D? Two Allahabad cases are cited by this Bench in support of its ruling in Ram Lal v. Sir Chand I.L.R. (1901) A. 439 contemplates (p. 441) a decree for costs being given against a non-mortgagor personally. No doubt it intreprets the obsolete Section 90, Transfer of Property Act, as referring only to a mortgagor, 'the whole tenor and wording of Section 90 abundantly show that the persons affected by it are the mortgagee who has brought the property to sale, and the mortgagor,' p. 440. But that is of little assistance in interpreting Order 34, Rule 6 because the wording has changed, 'amount due for the time being on the mortgage' giving place to 'amount due to the plaintiff,' which may well include costs from a non-mortgagor. In that case (p. 441) no order had been made in the preliminary decree to the effect that the non-mortgagor should be personally liable in costs, and again in Mola Amber v. Sri Dhcur I.L.R. (1904) A. 507 it is pointed out that the preliminary decree: contained nothing' justifying the application for a personal decree. Apparently that decree was in some form resembling 5 of Appendix D of Code of Civil Procedure before its amendment in 1929; for it was a suit for redemption governed by Section 92, Transfer of Property Act, or Order 34, Rule 7, Civil Procedure Code. In that form there is no clause such as is found in Form 4, the form of our decree, 'that if the net proceeds of the sale are insufficient to pay such amount and such subsequent interest and costs in full, the plaintiff shall be at liberty to apply for a personal decree.
3. Where a Court decrees 'if the proceeds are insufficient to pay costs' it must contemplate costs remaining unpaid if there is any balance owing after the sale. In the present suit the mortgage amount with interest comes to over 76,000 rupees and the costs are about Rs. 3,000. It is an ingenious fiction but one to which a Court can hardly lend colour that the mortgage amount, interest and costs are as it were piled into heap, with the costs at the top, and then the moment that some bidder at the sale has offered Rs. 3,000, the costs are cleared off, and only the mortgage amount and interest at the bottom remain to be defrayed. The heap as a matter of fact consists of 'what is declared due to the plaintiff (para. 2 of decree) and if a portion of the heap remains not cleared off after the sale it is still 'what is declared due to the plaintiffs,' and if costs are declared due to the plaintiffs, they are justified in treating' this residue as costs, and in applying under para. 3 for their personal decree. Any other interpretation would seem to make para. 3, Form 4 a dead letter as regards non-mortgagor defendants.
4. This was evidently the opinion of another Bench of this Court reported in Komandur Kamakimmal v. Kotnandur Narasimhacharlu (1912) 12 M.L.J. 312 and if this be read with Venugopalachariar v. Padmanabha Row (1915) 29 M.L.J. 120 it cannot be said that there is any binding authority upon this question to be found in the rulings.
5. In this view of the law we see no reason to interfere with the Lower Court's judgment. The plaintiffs did not ask for a personal decree against 4th defendant and apparently do not want one, but it follows logically upon the argument that makes defendants 2 and 3 personally liable and it must stand. Only 4th defendant will not be liable to arrest. The appeal is dismissed with costs.