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Cheriyonni Alias Aninhat Moothavar Styled Payyoramala KoThe Raman Vs. Nhera Poyile Parkum Minjer Packer and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in13Ind.Cas.174
AppellantCheriyonni Alias Aninhat Moothavar Styled Payyoramala KoThe Raman
RespondentNhera Poyile Parkum Minjer Packer and anr.
Cases ReferredMadappa v. Rama Krishna
Excerpt:
mortgage - personal covenant--suit on mortgage--withdrawal of prayer for sale of hypotheca--second appeal, value of, is determined by original value of suit. - - ..if i fail to pay the amount at the prescribed time, i agree to your realising the principal with interest accruing at lo per cent, a year from the prescribed time so long as it remains unpaid by causing sale of my jenmam and all other rights in the properties hypothecated, and to pay the deficit, if any, in person......documents, that the amount may be recovered both from the property hypothecated and from the debtor personally and provide that the debt is to be recovered by sale of the hypotheoa in the first instance and only the deficit, if any, from the debtor. the debt was borrowed for a purpose which would justify charging it on stanom property and the purpose is recited in the document.2. there is, no doubt, a general covenant to pay the debt within the time specified, which would ordinarily render the covenantor personally mable bat the specific stipulation relating to the creditor's rights in case of default shows, in our opinion, that the plaintiff was bound to proceed against the hypotheca before claiming a personal decree against the first defendant. in the plaint he asked for recovery.....
Judgment:

1. The first defendant, a Stani, executed a hypothecation-bond in favour of the plaintiff for a debt borrowed for the purpose of paying arrears of Government revenue on properties belonging to the Satnom. The document, Exhibit A., after setting oat the purpose for which the loan was taken says: 'I shall pay you the said sum of Rs. 200 before 30th Makaram 1078 next and receive back this deed.... If I fail to pay the amount at the prescribed time, I agree to your realising the principal with interest accruing at lo per cent, a year from the prescribed time so long as it remains unpaid by causing sale of my jenmam and all other rights in the properties hypothecated, and to pay the deficit, if any, in person.... ' It will be observed that the parties depart from the phraseology ordinarily employed in hypothecation documents, that the amount may be recovered both from the property hypothecated and from the debtor personally and provide that the debt is to be recovered by sale of the hypotheoa in the first instance and only the deficit, if any, from the debtor. The debt was borrowed for a purpose which would justify charging it on Stanom property and the purpose is recited in the document.

2. There is, no doubt, a general covenant to pay the debt within the time specified, which would ordinarily render the covenantor personally Mable bat the specific stipulation relating to the creditor's rights in case of default shows, in our opinion, that the plaintiff was bound to proceed against the hypotheca before claiming a personal decree against the first defendant. In the plaint he asked for recovery of the debt by sale of the mortgaged property, but subsequently gave up that claim. We must hold that he is not entitled to a personal decree against the first defendant. The case of Madappa v. Rama Krishna 13 Bom. L.R. 698 : (1911) 2 M.W.N. 1 : 15 C.W.N. 962 : 14 C.L.J. 245 : 35 BP. 327 : 12 Ind. Cas. 42, relied on by Mr. Madhavan Nair, affords him no help. The Privy Council in that case merely held, on the construction of a particular document, that there was a covenant to pay interest for a disputed period.

3. Mr. Madhavan Nair also raised a preliminary objection that no second appeal lies in this case, as the prayer for sale of the hypotheca was withdrawn and the amount sued for is less than Rs. 500. But it is the nature of the suit as originally framed that determines the question whether a second appeal is properly maintainable. We reverse the decrees of the Courts below and dismiss the suit with costs throughout.


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