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Duraiswami Ayyangar Vs. Rangaswami Ayyangar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in152Ind.Cas.416
AppellantDuraiswami Ayyangar
RespondentRangaswami Ayyangar
Cases ReferredGovindaswami Koundan v. Kandasami Koundan
Excerpt:
civil procedure code (act v of 1908), order xxxiv, rule 6 - decree on prior and puisne mortgages--entire property sold by prior mortgagee--puisne mortgagee's right to get personal decree. - - 84 :38 mlj 93 :9 lw 538 :26 mlt 192. secondly, the allahabad high court, going to the other extreme, has held, that in cases, like the present, the mortgagee is not entitled to a personal decree......rao, j.1. both the lower courts have held that the plaintiff mortgagee is entitled to a personal decree and the question is whether that view is wrong. the suit with which we are concerned, is order 8. no. 30 of 1924. that was filed by the second mortgegee and the prior mortgagee was not impleaded. subsequently order 8. no, 435 of 1925 was instituted by the 1st mortgagee and to that suit, however, the second mortgagee was made a party. in execution of the decree passed in the last-mentioned suit, the entire property mortgaged, was brought to sale and nothing remained to be sold in execution of the decree in order 8. no. 30 of 1924. the point to be decided is whether the second mortgagee, i.e, the plaintiff in order 8. no. 30 of 1924, is entitled to obtain a personal decree in.....
Judgment:

Venkatasubba Rao, J.

1. Both the lower Courts have held that the plaintiff mortgagee is entitled to a personal decree and the question is whether that view is wrong. The suit with which we are concerned, is Order 8. No. 30 of 1924. That was filed by the second mortgegee and the prior mortgagee was not impleaded. Subsequently Order 8. No, 435 of 1925 was instituted by the 1st mortgagee and to that suit, however, the second mortgagee was made a party. In execution of the decree passed in the last-mentioned suit, the entire property mortgaged, was brought to sale and nothing remained to be sold in execution of the decree in Order 8. No. 30 of 1924. The point to be decided is whether the second mortgagee, i.e, the plaintiff in Order 8. No. 30 of 1924, is entitled to obtain a personal decree in his suit. The lower Courts have answered the question in the affirmative and, in my opinion, rightly. Mr. Thiruvenkatachari for the appellant has argued the point fully, citing the numerous cases on the subject. Badri Das v. Inayat Khan 22 A 404 : AWN 1900, 132 and Darbari Mal v. Mula Singh 56 Ind Cas. 139 : 42 A 519 : 2 UPLR (A) 160 : 18 ALJ 628 entirely support his contention. I must remark that the Allahabad High Court has taken two extreme, and if I may say so with respect, inconsistent views. First, it has held that the mortgagee is entitled to a personal decree even if he has relinquished his claim against portions of the mortgaged property. This view has been dissented from by our High Court Mr. R.P. Gill v. Lingamallu Varada Raghavayya 51 Ind. Cas. 84 : 38 MLJ 93 : 9 LW 538 : 26 MLT 192. Secondly, the Allahabad High Court, going to the other extreme, has held, that in cases, like the present, the mortgagee is not entitled to a personal decree. The decisions, where this view has been taken, are Badri Das v. Inayat Khan 22 A 404 : AWN 1900, 132 and Darbari Mal v. Mula Singh 56 Ind Cas. 139 : 42 A 519 : 2 UPLR (A) 160 : 18 ALJ 628 already referred to But I think the correct principle is that contained in the decisions of our own Court. The question in each case is--Is the act of the mortgagee unreasonable or does blame attach to him? If not, he is entitled to a personal decree. This is the principle deducible from R.P. Gill v. Lingamallu Varada Raghavayya 51 Ind. Cas. 84 : 38 MLJ 93 : 9 LW 538 : 26 MLT 192, Periaswami Kone v. Muthia Chettiar 23 Ind. Cas. 515 : 38 M 677 : 15 MLT 232 and Shanmuga Pillai v. Ramanatha Chetti 17 M. 309. In the last mentioned case, one of the properties, in respect off which the mortgage decree was obtained, was claimed by the judgment-debtor's brother. He was not a party to the decree and had instituted a suit for partition. In that suit the property in dispute fell to the share of the brother. Thereupon the mortgagee, without taking steps to sell that property, asked for a personal decree against his judgment-debtor. It was held that he was entitled. In the first of the three cases mentioned above R.P. Gill v. Lingamallu Varada Raghavayya 51 Ind. Cas. 84 : 38 MLJ 93 : 9 LW 538 : 26 MLT 192 Seshagiri Aiyar, J., quotes with approval the observation of Sir John Woodroffe in Satish Ranjai Das v. Mercantile Bank of India, Ltd. 48 Ind. Cas. 322 : 45 C 702 that the matter 'should be looked at rationally' and Oldfield, J., observes that each case must be decided on its own merits. This view is in conformity with my decision in Govindaswami Koundan v. Kandasami Koundan : AIR1934Mad82 . I must therefore hold that the conclusion of the lower Appellate Court is right.

2. The second appeal fails and is dismissed with costs.


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