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Gopisetti Sanyasi Rao Dora Through His Advocate Mr. B. Jagannadha Das Vs. Gopisetti Suryanarayanamma - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1936Mad964; 165Ind.Cas.647; (1936)71MLJ538
AppellantGopisetti Sanyasi Rao Dora Through His Advocate Mr. B. Jagannadha Das
RespondentGopisetti Suryanarayanamma
Cases ReferredSami Aiyar v. Ramaswami Chettiar
Excerpt:
- - 2. the learned subordinate judge is undoubtedly right in saying that the decree which was a compromise decree contains a provision imposing personal liability upon the appellant as well as laying a charge upon the lands forming item no. we are not satisfied that the analogy of a mortgage is sufficiently close to warrant the application of the principles derived from mortgage cases to this one......100 of 1933 in o.s. no. 20 of l921. the appellant is the judgment-debtor and the respondent, the decree-holder in o.s. no. 20 of 1921 in which the respondent obtained a decree for maintenance at the rate of rs. 50 per mensem. in the decree certain properties were charged with the payment of maintenance to the respondent. there were other properties charged with the payment of maintenance to the respondent's daughter but with those we are not now concerned. the judgment-debtor not having paid the maintenance, the decree-holder brought the charged property to sale and purchased it herself the purchase being said to be subject to her own maintenance charge. the judgment-debtor having again fallen into arrears in payment of the maintenance, the decree-holder again applied in e.p. no. 100.....
Judgment:

Burn, J.

1. This is an appeal from the Order of the learned Subordinate Judge of Berhampore in E.A. No. 20 of 1933 in E.P. No. 100 of 1933 in O.S. No. 20 of l921. The Appellant is the judgment-debtor and the respondent, the decree-holder in O.S. No. 20 of 1921 in which the respondent obtained a decree for maintenance at the rate of Rs. 50 per mensem. In the decree certain properties were charged with the payment of maintenance to the respondent. There were other properties charged with the payment of maintenance to the respondent's daughter but with those we are not now concerned. The judgment-debtor not having paid the maintenance, the decree-holder brought the charged property to sale and purchased it herself the purchase being said to be subject to her own maintenance charge. The judgment-debtor having again fallen into arrears in payment of the maintenance, the decree-holder again applied in E.P. No. 100 of 1933 for realisation of the arrears by arrest of the defendant and by sale of his other properties. The judgment-debtor contended that he was not liable to be arrested and that his other properties were not pliable for the maintenance. The learned Subordinate Judge found in favour of the decree-holder and directed execution to proceed. Hence this appeal.

2. The learned Subordinate Judge is undoubtedly right in saying that the decree which was a compromise decree contains a provision imposing personal liability upon the appellant as well as laying a charge upon the lands forming item No. 2 in plaint A schedule. The learned Subordinate Judge has held that the mere fact that the decree-holder purchased the charged property does not involve the extinction of her claim against the defendant personally. Mr. Jagannadha Das for the appellant has attempted to persuade us that the learned Subordinate Judge is wrong. Mr. Jagannadha Das contends that, when the decree-holder purchased the charged property in execution of her decree for maintenance, her claim against the judgment-debtor personally became merged with her claim by virtue of the charge upon the property and since the charge upon the property must be deemed to have been extinguished therefore her claim against the judgment-debtor personally also must have been extinguished. There is no authority in support of this contention but Mr. Jagannadha Das discussed cases of mortgage as being to some extent analogous. He cited the case reported in Balamani Ammal v. Rama Aiyar (1924) 48 M.L.J. 273 and illustration No. 1 on page 558 of the latest edition of Mulla's Transfer of Property Act. The illustration is based upon the decision quoted. We are not satisfied that the analogy of a mortgage is sufficiently close to warrant the application of the principles derived from mortgage cases to this one. This decree for maintenance is not a decree for a single sum of money once for all. It is a decree that the decree-holder shall from time to time become entitled to a payment of Rs. 50 per mensem. Under the decree payment was to be made once in six months. It is difficult to see how a liability which has not come into existence and cannot come into existence until some time in the future can be deemed to have been extinguished by reason of the purchase of the property by the decree-holder. There is no question here of capitalising the whole of the future value of the lady's annuity of Rs. 50 per mensem and saying that the sale of the charged property has brought in an amount equal to that. Moreover we cannot say that the case cited in Balamani Ammal v. Rama Aiyar (1924) 48 M.L.J. 273 really helps the analogy which Mr. Jagannadha Das wishes us to consider. In that case it was expressly pleaded by tie plaintiff that his mortgage had become extinguished, or in other words that the debt, due to the mortgagee from the mortgagor had been discharged. If that were so, there could of course be no liability on the mortgagor after the mortgagee had acquired the mortgage security. But there is nothing to prevent a mortgagee from purchasing the mortgaged property in execution of his decree on the mortgage without surrendering his claim against the mortgagor personally. It happens everyday that the mortgagee gets permission to bid in the sale of the mortgaged property held in execution of his decree, and if the sale of the mortgaged property does not produce an amount sufficient to discharge the claim under the mortgage, the mortgagee is at liberty, where the stipulations in the bond are appropriate, to apply for a personal decree against' the mortgagor for the balance. In the present case Mr. Jagannadha Das admits that, if a third party had purchased this property at the Court auction subject to the maintenance charge in favour of the respondent, the judgment-debtor's personal liability would not have been in any way reduced. We cannot say that it is in any way reduced merely because the purchaser was the decree-holder herself particularly since the purchase was made subject to the maintenance charge. We are unable to say that the judgment-debtor's liability under the decree is extinguished merely by the fact that the charged property has been purchased by the decree-holder. It is not necessary for us to say whether the charge on the property has been extinguished but we think it is quite clear that, even if it has, the personal liability of the judgment-debtor under the decree has not been extinguished. We do not think there is much assistance to be gained from the decision in Sami Aiyar v. Ramaswami Chettiar (1922) 44 M.L.J. 171. That was a case of a surety's liability for a debt being merged on the extinction of the debt itself. Here, as we have pointed out, the debt is not extinguished, and we do not see how the judgment-debtor's liability for the debt can be deemed to have been extinguished. The decision of the learned Subordinate Judge appears to us to be correct and this appeal is dismissed with costs.


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