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Boddepalli Sanyasappa Rao and anr. Vs. Sanapala Papinaidu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1945Mad392; (1945)1MLJ430
AppellantBoddepalli Sanyasappa Rao and anr.
RespondentSanapala Papinaidu and ors.
Cases ReferredSabapathi Pillai v. Choekalingam Pillai
Excerpt:
- - it is true they provide in para 9 of their own decree for payment of costs not merely by the first defendant but also by some of the other defendants as well. this decree for costs, imposing liability on the other defendants as well, does not alter the situation in favour of the decree-holder on the question that we are now considering......is something in the decree itself to indicate that a contrary appropriation or application of the sale proceeds was intended or directed. the subordinate judge has held that the contrary has been indicated by the high court judgment in the present case and he has referred in the course of his judgment to clauses 2 and 4 of the high court's decree where the words ' the aforesaid amount' are used, meaning the amount specified in clause 1, viz., rs. 6156-6-n. he took the view that, as the high court stated that the plaintiff should have a charge for that amount on the family properties in the hands of the first defendant and that the properties of the first defendant should be sold in the first instance in realisation of that amount, the costs awarded were not to be first taken out of the.....
Judgment:

Chandrasekhara Ayyar, J.

1. In this appeal preferred by the judgment-debtors 4 and 5, the only question which arises is whether a sum of Rs. 1,640 which was realised by sale of the first defendant's properties in execution of a charge decree should first be appropriated to interest and costs due under the' decrees of the trial Court and the appellate Court, or whether it can be appropriated in the manner the decree-holder has done in filing the execution application, namely, towards the amount of the principal and interest due under the decree. This question would not arise at all and would have no value if we had not more than one mortgagor to consider. The right conferred on the mortgagee to appropriate realisations under the decree first towards interest and then towards costs and lastly towards the principal money is intended for his benefit and the mortgagor cannot--and generally will not--insist on his taking this benefit. But where there is more than one mortgagor, the difficulty arises as between them and the method of appropriation will assume importance, especially where the moneys realised are from the properties, comprised in the mortgage and belonging to one or a few only among them. The decision in Saba-pathi Pillai v Chockalingam Pillai : (1913)25MLJ552 cited for the appellant, is authority for the position that Order 34, Rule 13 of the Code of Civil Procedure, which lays down the method of appropriation, applies not merely to a case where a property is sold with the consent of the prior mortgagee but also to other cases where there is no prior mortgage to consider and provide for. When this difficulty is got over, the rest of the legal position seems to be fairly clear. When moneys are realised in execution of a mortgage decree, > they should be applied in the manner provided under Order 34, Rule 13, as a general rule, unless there is something in the decree itself to indicate that a contrary appropriation or application of the sale proceeds was intended or directed. The Subordinate Judge has held that the contrary has been indicated by the High Court judgment in the present case and he has referred in the course of his judgment to Clauses 2 and 4 of the High Court's decree where the words ' the aforesaid amount' are used, meaning the amount specified in Clause 1, viz., Rs. 6156-6-n. He took the view that, as the High Court stated that the plaintiff should have a charge for that amount on the family properties in the hands of the first defendant and that the properties of the first defendant should be sold in the first instance in realisation of that amount, the costs awarded were not to be first taken out of the sale proceeds as they are not included in the 'aforesaid, amount.' This construction of the decree is far too technical and narrow and I have no doubt whatever that it was not intended by the learned Judges when they spoke of the charge for the ' aforesaid amount' and a sale for its realisation, that a different rule from what is enunciated in Order 34, Rule 13 should be followed. On the other hand, they say in paragraph 7 that, except in the manner provided by them, the decree of the lower Court was confirmed and the appeal was dismissed. The decree of the lower Court provided for the payment of a certain amount as costs by the first defendant. This decree was-confirmed. The general rule about costs being taken first out of the sale proceeds must apply. It is true they provide in para 9 of their own decree for payment of costs not merely by the first defendant but also by some of the other defendants as well. This decree for costs, imposing liability on the other defendants as well, does not alter the situation in favour of the decree-holder on the question that we are now considering. It is as if such a decree was made even by the first Court and the position would be that several persons interested in the mortgaged property including the first defendant were under an obligation to pay the costs to the plaintiff. Sabapathi Pillai v. Choekalingam Pillai : (1913)25MLJ552 is exactly such a case. There too the first defendant who was the mortgagor was directed to pay a certain sum of money for the plaintiff's costs. The second defendant was impleaded as a coparcener of the first defendant and the decree stated that he should also be liable for the said costs. The sale proceeds were found insufficient to discharge the entire mortgage debt and interest and costs and the plaintiff applied for execution against the second defendant to recover the costs decreed against him. The second defendant contended that, so far as costs were concerned, the sale proceeds should have been first applied in payment of interest and costs and that the balance alone should be applied to the payment of the principal amount. His contention that the plaintiff was not, therefore, entitled to any relief against him in the matter of costs as the amount realised by sale had discharged the costs of the suit, was accepted.

2. That decision applies to the facts of this case and the sum of Rs. 1640 realised by way of sale proceeds should first be appropriated towards interest and costs of the suit and the appeal. There will be an order accordingly, the order of the lower Court being vacated. The execution petition will have to be amended in the light of the foregoing observations and the execution will proceed only on this basis. The first respondent will pay the appellants' costs of this miscellaneous appeal. No leave.


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