1. The suit was on a mortgage and ended in a decree for recovery by sale of the property. The decree also contained a declaration of the personal liability of 2nd defendant for plaintiff's costs in case the sale-proceeds were not sufficient to pay them as well as the mortgage-money. Defendant No. 2, who appeals against this part of the decree, purchased the property after the suit mortgagee.
2. His first objection, that such a declaration call in no case be included in a preliminary decree for sale, is answered by reference to Kamalamma v. Komandur Narasimha Charlu 17 M.L.J. 317.
3. Next he argues that whilst such a declaration can be given, as in that case, against the mortgagor, none can be given against any other party, because it is only against the mortgagor that a personal decree under Order XXXIV, Rule 6, (Section 90, Transfer of Property Act) can eventually be passed. Costs, it is said, may be legally recoverable from 2nd defendant under the decree against him. Bat the mortgage-money will not be legally recoverable from him; and, as the assumption that the portion of the decree amount unsatisfied by the sale-proceeds represents costs, not the mortgage-money, will be inadmissible, the passing of a personal decree against him for it will not be justified by law.
4. We have been referred to English cases, in which this relief was given, Sharple v. Adams (1863) 32 Beav. 213; Liverpool Marine Credit Co. v. Wilson (1872) 7 Ch. App. 507 : 220 W.R. 665 and Griffith v. Pound (1890) 45 Ch. D. 553. But in the first the defendant was in the position of the mortgagor, since he made the mortgage as his trustee and with his sanction; and in any case in the absence of statutory restrictions on the contents of the decree, English practice is conclusive. Such statutory restrictions are imposed in India by Order XXXIV, Rules 4(1) and 5, and the forms of decree, Nos. 4 and 11, Appendix D, of the Civil Procedure Code, the heading of the last-mentioned form, 'Decree against mortgagor personally,' implying what (it will be seen) authority supports, that defendant' in Rule G means only the mortgagor. We have not been shown authority for disregarding these restrictions and do not feel entitled to do so.
5. The decisions in Ram Lal v. Sil Chand (1901) A.W.N. 131 and Mata Amber v. Sri Dhar 1 A.L.J. 250 are that 'defendant' in Section 90, Transfer of Property Act, means only the mortgagor and that no subsequent decree can be made against any other defendant, when the preliminary decree has provided for recovery of costs only by sale of the property. The judgments, no doubt, support plaintiff by he suggestions contained in thorn, that personal decree for costs could have been made against such other defendants if they had been applied for when the preliminary decrees were passed. For, if such decrees could have been given with immediate effect, it is hard to understand why they should not be given, like that before us, as declarations subject to the result of the sale. But these suggestions were only obitr, and the distinction between liability for costs and mortgage-money, on which plaintiff relics here, was not referred to. That distinction was drawn, though as between mortgagee and mortgagor, in Damodar Das v. Budh Kuar 10 A.d 179 and Rutnessur Sein v. Jusoda 14 C.k 185. But the decree in these cases were for foreclosure; and the Court disregarded the distinction in two cases, in which the decrees were (as here) for sale: Raj Kumar Singh v. Sheo Narayan Sahu 12 C.W.N. 364 and Panday Jagannath v. Junian 24 Ind. Cas. 63. In the latter case the distinction was material between the parties to the mortgage with reference to limitation; and Chamier, J., whose conclusions we respectfully adopt, refused to draw it, holding that no such disintegration of the amount declared due under Order XXXIV, Rule 4, was contemplated by the Legislature, and that no presumption in favour of the appropriation of sale-proceeds in any particular way was recognised by authority. It has not been shown how those principles, valid between mortgagor and mortgagee, are invalid between the former and other defendants.
6. Taking this view, we must decide for 2nd defendant, though the result of doing so will be to exempt him from liability for the expense which his deceitful and reckless pleading has imposed on plaintiff. The second appeal is allowed and the declaration regarding 2nd defendant's liability is expunged from the decree under appeal. In view of his conduct he will pay his own costs before the District Munsif. Plaintiff must pay his costs in first and second appeals.