Skip to content


Perumal and ors. Vs. K. Jayammal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1974)2MLJ232
AppellantPerumal and ors.
RespondentK. Jayammal and ors.
Cases ReferredHira Lal v. Kali Nath
Excerpt:
.....preliminary decree which has been made absolute, we could only attribute the omission to have a final decree drawn up to a misapprehension on the part of the court, as well as the parties concerned as to the necessity of having a final decree formally drawn up. 343, where there appears to have been an omission of this kind and it was held that such an omission may be condoned where the terms of the decree sought to be executed are otherwise ascertained or are clearly ascertainable, as they are in this case. favour if the first mortgagee was satisfied by the mortgagor before the sale'.all that transpires from these observations of the supreme court is that the procedure adopted by the trial court in granting a subsequent mortgagee a decree on foot of his puisne mortgage is irregular. i..........a perusal of the revised decree shows that the amendment was not properly carried out. a final decree was passed on 24th april, 1967 providing that after the plaintiff's decree was fully satisfied, the 8th defendant would be entitled to realise the mortgage amount due to her from out of the surplus sale proceeds in the event of the hypotheca being sold. it appears that there was a settlement out of court between the mortgagor and the earlier mortgagee, the plaintiff, with the result, the plaintiff entered full satisfaction of the decree on 7th may, 1969. evidently, this step was taken behind the back of the 8th defendant to frustrate her claim. subsequently, the 8th defendant filed e.p. no. 279 of 1969 praying for the sale of the hypotheca so that she might realise the amount.....
Judgment:

S. Maharajan, J.

1. This is a civil miscellaneous second appeal against the judgment of the District Judge of Chingleput allowing C.M.A. No. 23 of 1970 against the order of the District Munsif of Chingleput in execution petition No. 279 of 1969 in O.S. No. 328 of 1963. In order to appreciate the controversy between the parties it is necessary to state a few facts. The Chingleput Dhanasekara Nidhi Limited, instituted a suit, O.S. No. 328 of 1963 on the file of the District Munsif's Court, Chingleput in enforcement of a mortgage, granted by the first defendant in favour of the Nidhi. Defendants 2 to 7 were impleaded as subsequent purchasers of the hypotheca. The 8th defendant was impleaded as she had obtained a subsequent mortgage of the same property from the first defendant on 11th June, 1962. This mortgage, though subsequent to the mortgage granted in favour of the first defendant, was antecedent in point of time to the alienations in favour of the defendants 2 to 7. The 8th defendant, who is a woman, prayed in her written statement for a decree in her favour for the amount due under her mortgage. A preliminary decree was granted in favour of the plaintiff and that decree entitled the 8th defendant to work out her equities. Subsequently, as the 8th defendant was aggrieved with this decree, she filed I.A. No. 68 of 1963 under Section 152, Civil Procedure Code, for amendment of the decree by incorporating the following clause viz., ' granting the usual mortgage decree on the mortgage deed in favour of the petitioner (D-8) similar to the one that was granted in favour of the plaintiff and enabling the petitioner to realise the amount due under her mortgage by sale of the hypothecated properties'. Notice of this application was admittedly served upon the mortgagor and after hot contest, the Court overruled the objections raised by him and granted on 3rd March, 1965 an amendment of the decree as prayed for without costs. Unfortunately, a perusal of the revised decree shows that the amendment was not properly carried out. A final decree was passed on 24th April, 1967 providing that after the plaintiff's decree was fully satisfied, the 8th defendant would be entitled to realise the mortgage amount due to her from out of the surplus sale proceeds in the event of the hypotheca being sold. It appears that there was a settlement out of Court between the mortgagor and the earlier mortgagee, the plaintiff, with the result, the plaintiff entered full satisfaction of the decree on 7th May, 1969. Evidently, this step was taken behind the back of the 8th defendant to frustrate her claim. Subsequently, the 8th defendant filed E.P. No. 279 of 1969 praying for the sale of the hypotheca so that she might realise the amount due to her from the sale proceeds. The mortgagor and the subsequent alienees contended that the 8th defendant was not competent to execute the decree after satisfaction had been recorded of the decree in favour of the plaintiff. The District Munsif held that as the hypotheca had not been sold in execution of the decree in favour of the prior mortgagees and as the decree itself had been satisfied without a sale, it was not competent for the 8th defendant to execute the decree which stood discharged. Consequently, the learned District Munsif dismissed her execution petition and referred her to a separate suit on the puisne mortgage. The puisne mortgagee preferred an appeal to the District Court, Chingleput and the learned District Judge has allowed the appeal, and directed the District Munsif to restore the E.P. No. 279 of 1969 and proceed with execution. It is against this order, defendants 2, 4 to 7 have preferred this appeal.

2. I have little hesitation in agreeing with the learned District Judge and confirming his judgment. A number of technical objections have been raised by the appellants against the executability of the final decree. It is true that the final decree does not correctly incorporate the amendment directed by the Court in I.A. No. 68 of 1963. All that the revised decree says is that the money realised by 'such sale' shall be paid into Court and be duly applied, after deduction therefrom of the expenses of the sale, first in payment of the amount paid by the 8th defendant in respect of the plaintiff's mortgage and the costs of the suit in connection therewith and in payment of the amount, which the Court may adjudge due in respect of subsequent interest on the said amount. This clause in the decree seems to contemplate a case where the 8th defendant pays off the prior mortgage, in which case only she would be entitled to bring the hypotheca to sale. But the effect of the amendment ordered by the Court in I.A. No. 68 of 1963 was to grant the 'usual' mortgage decree on foot of the mortgage deed in favour of the petitioner (D-8) similar to that which was granted in favour of the plaintiff and to enable the petitioner independently to realise the amount due under her mortgage by sale of the hypothecated properties. The executing Court should while construing the decree read it in conjunction with the order passed in I.A. No. 68 of 1963. It may be that by a clerical mistake committed by the office of the District Munsif the amendment directed by the Court was not carried out. But, the person who had obtained the relief, ought not to suffer for the mistakes of the office. In fact, in Chhaganlal Sakarial v. Jayaram Deoraj I.L.R. (1927) 51 Bom. 125 the plaintiff who had obtained a preliminary decree asked for execution of the decree without getting a final decree. No formal final decree was drawn up at all in that case. A Division Bench of the Bombay High Court, considering the objection that technically there was no final decree which could be executed, observed as follows: ' This contention has become possible, because of the laxity which prevails in the lower Courts in drawing up-decrees in mortgage suits. In the present case the preliminary decree was drawn up in the proper form provided by the Code of Civil Procedure. Under Rule 5 of Order 34, when such payment as is directed by the preliminary decree is not made, the Court shall, on application made in that behalf by the plaintiff, pass a decree that the mortgaged property, or a sufficient part thereof, be sold....The question that now arises is whether, at this distance of time, nearly fifteen years after the decree, and twelve years, after the order making the decree absolute was made, the execution can go on or not. Having regard to the terms of the preliminary decree which has been made absolute, we could only attribute the omission to have a final decree drawn up to a misapprehension on the part of the Court, as well as the parties concerned as to the necessity of having a final decree formally drawn up. The parties seem to have gone on all these years on the footing that the preliminary decree, which was made absolute, was the formal expression of the final decree under Rule 5 of Order 34. I am of opinion that, though the final decree has not been formally drawn up on the terms of the preliminary decree, which has been made absolute, that decree coupled with the order, may be taken under the circumstances to be the final decree. In its ultimate analysis it is only a formal defect. It is conceivable that a formal defect of this nature may lead to a real difficulty in the way of execution and it is necessary to see that even such a formal defect does not creep in, and that a formal decree is drawn up when the decree is made final. But under the circumstances of this case, we are not prepared to hold that there is no executable decree. The result of allowing a contention of this nature at this distance of time, will be that a decree will have to be drawn up formally now and a fresh beginning will have to be made in the way of execution after the lapse of so many years. That is a result which should be avoided so far as it is legally possible to do so'. In that case their Lordships relied upon Jawahar Mal v. Kistur Chand I.L.R. (1891) All. 343, where there appears to have been an omission of this kind and it was held that such an omission may be condoned where the terms of the decree sought to be executed are otherwise ascertained or are clearly ascertainable, as they are in this case. Section 99 of the Code of Civil Procedure provides that 'No decree shall be reversed or substantially varied, nor shall in any case be remanded, in appeal on account of any-misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.' The salutary principle embodied in Section 99, Civil Procedure Code, has been followed in both the cases cited supra Following these rulings I think it right that in spite of the omission of the office to carry out properly the amendment ordered by the trial Court, it was open to the executing Court to construe the provisions of the decree with reference not only to the irregularly drafted decree but also to the order passed by the Court in I.A. No. 68 of 1963.

3. It is next contended on behalf of the appellants that it was incompetent for the Court in an action filed by an earlier mortgagee to grant a decree in favour of a puisne mortgagee. I are unable to accept this contention. It is true that an irregularity has been committed by the trial Court when it granted the amendment as prayed for. As explained by the Supreme Court in S.P. Majoo v. Ganga Dhar : [1969]3SCR33 , there was a recognised practice on the original side of some High Courts to treat the preliminary mortgage decree as being in favour of not only the first mortgagee but also in favour of the second mortgagee and this practice of treating the suit as one for the benefit of the puisne mortgagee was based on the English practice as it appears from the case of Platt v. Mendel (1884) 27 Ch.D. 246. Their Lordships pointed out, that under the Transfer of Property Act, the proper procedure is different and the effect of incorporation of the relevant sections in the Transfer of Property Act under Order 34 of the new Code of Civil Procedure, was to put an end to any independent practice on the original side of the Calcutta High Court based on the old procedure. Their Lordships held that 'The legal position therefore is that the second mortgagee is. merely made a party to the suit in order that he might have an opportunity of redeeming if he wished, and in order that he might receive his mortgage money, or part of it, out of the surplus sale-proceeds after satisfaction of the first mortgagee, but the decree was not really a decree in his favour, and he could not insist upon a sale nor get a personal decree in his; favour if the first mortgagee was satisfied by the mortgagor before the sale'. All that transpires from these observations of the Supreme Court is that the procedure adopted by the trial Court in granting a subsequent mortgagee a decree on foot of his puisne mortgage is irregular. But, I have little doubt that the Court which directed the amendment had jurisdiction to direct the amendment. It cannot be said that the procedure adopted by the Court was one without jurisdiction though it may be attacked as irregular. The appellants were parties to the order directing the amendment of he decree and if the order was wrong it was open to them to have taken up the order in appeal. They kept quiet and allowed the order to become final and binding upon them and long subsequently when the decree as amended was sought to be executed by the 8th defendant, they started raising objections. They are precluded by virtue of the order in I.A. No. 68 of 1963 from questioning either the propriety or the regularity or the legality of the amendment ordered by the Court. In Mahadev Parshad v. Mungi a Division Bench of that Court held that the validity of a decree depends upon the authority by which it is issued and the mandate that it contains and not upon the extent to which the language prescribed by the Code has been reproduced. The Court should look rather to the substantial effect intended by the decree than to the precise form of words which the Court has used. The law does not favour frivolous objections in regard to the form of the decree, for Section 99, Civil Procedure Code, declares that no decree shall be reversed or substantially varied in appeal on account of any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. It may be recalled that the respondent herein (the subsequent mortgagee) paid the full Court-fee due upon the puisne mortgage and thereafter obtained amendment of the decree which enabled her, irrespective of the conduct of the prior mortgagees, to bring the hypotheca to sale and discharge the puisne mortgage out of the sale proceeds thereof. A decree as amended must show on what judgment it is based, for and against whom it is issued and the amount to be taken from the latter for the benefit of the former. If, therefore, that decree specifies the precise amount which has to be recovered and it directs that the recovery shall be made by the sale of the mortgaged property, the executing Court has no option but to execute the decree. It has no jurisdiction to go into the question whether the form of the decree granted by the trial Court was substantially in accordance with the procedure prescribed by the Code of Civil Procedure. It has been held by a Division Bench of this Court in Venkata Reddayya v. Kondala Rao : AIR1953Mad1007 that the executing Court is not entitled to go behind the decree, which stands amended rightly or wrongly, and the executing Court will not even be entitled to hear the judgment-debtors when they claim that the amendment had been ordered without notice to them, or that the decree had been amended, when it had become time-barred. Their Lordships held that these two objections should have been agitated before the Court which passed the decree and which ordered the amendment. The position here is much worse because the amendment was ordered after notice to the appellants. Learned Counsel for the appellants relied upon a. ruling in Vedavyasa Ayyar v. Madura Hindu Sabha Nidhi Company, Limited I.L.R. (1919) Mad. 90 : (1919) 35 M.L.J. 639. That was a case where a suit for sale by a prior mortgagee against the mortgagor and a puisne mortgagee was instituted and the decree not only directed the sale of the mortgaged properties for the amount found due to the prior mortgagee hut also ascertained the amount due to the puisne mortgagee and ordered the payment to him of this amount out of the surplus sale proceeds. It Was held that the puisne mortgagee was not entitled to execute the decree for the amount due to him, when no sale was held for the realisation of the amount due to the prior mortgagee, that the remedy of the puisne mortgagee was a suit for sale, and that the decree in the previous suit did not operate as res judicata. I fail to see how this ruling can help the appellants. The decree in that case clearly directed that the puisne mortgagee would be entitled to discharge himself only out of such excess sale proceeds as remained after discharging the prior mortgage. But, in this case, the decree as amended clearly granted the 8th defendant the right to bring the hypotheca to sale and discharge his puisne mortgage out of the sale proceeds thereof. As I have already stated, the propriety or regularity of this decree may be open to question. But the Court, which had the right to go Wrong, decided, after hearing both the parties, to grant such a decree and any objection to the propriety of the decree can be made only in an appeal against the order and not before the executing Court when the decree as amended is being put into execution. In fact, the Supreme Court has held in Hira Lal v. Kali Nath : [1962]2SCR747 , that the validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some other such ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it. It can certainly not be contended that the Court that amended the decree in this case had no competence to grant a decree on foot of the puisne mortgage obtained by the 8th defendant. Had the 8th defendant instituted a suit upon the puisne mortgage, the Court undoubtedly had both territorial and pecuniary jurisdiction to decree such a suit. The objection raised by the appellants does not go to the root of the jurisdiction of the Court and it cannot therefore be raised in execution. In the result, I agree with the first appellate Court's view of the matter and dismiss the civil miscellaneous second appeal with costs. Leave refused.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //