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Suri Markandeya Sastri Vs. Gottumukkala Subhanadhra Charyulu and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1918Mad530; 42Ind.Cas.288
AppellantSuri Markandeya Sastri
RespondentGottumukkala Subhanadhra Charyulu and ors.
Cases ReferredAbbakke Heggadthi v. Kinhiamma Shetty
Excerpt:
mortgage - mortgagor, personal liability of, to pay mortgage money--civil procedure code (act v of 1908), order xxxiv, rule 6, appendix d--mortgage decree, form of--right to proceed against mortgagor personally. - .....the mortgaged property proved to be insufficient to pay the amount due (order xxxiv, rule 6, civil procedure code).3. but the district munsif's decree did not conform to the form for mortgage decrees printed in appendix d, inasmuch as it did not expressly reserve this right, and the subordinate judge, having recognised that according to that form the right should have been reserved, should have provided accordingly in his decree,4. we must reverse the decree of the lower appellate court and direct the addition of clause 3 of form 4 of appendix d to be made to the decree of the court of first instance.5. appellant will get his costs of the appeal in this court. in the lower appellate court each party will bear his own costs.
Judgment:

1. We cannot agree with the Subordinate Judge in his opinion that the mortgage deed in this case contains no personal covenant to pay. The words 'we shall discharge the debt' make this a stronger case than that of Abbakke Heggadthi v. Kinhiamma Shetty 29 M. 491. where it was held that the personal liability of the mortgagor would ordinarily exist in the absence of a specific contract to the contrary.

2. The Subordinate Judge would have been on safer ground if he had based his refusal on the second ground mentioned in his judgment, namely, that the decree-holder was entitled to proceed against the person of the defendants under Order XXXIV, rule 6, only after the proceeds of the sale of the mortgaged property proved to be insufficient to pay the amount due (Order XXXIV, rule 6, Civil Procedure Code).

3. But the District Munsif's decree did not conform to the form for mortgage decrees printed in Appendix D, inasmuch as it did not expressly reserve this right, and the Subordinate Judge, having recognised that according to that form the right should have been reserved, should have provided accordingly in his decree,

4. We must reverse the decree of the lower Appellate Court and direct the addition of Clause 3 of form 4 of Appendix D to be made to the decree of the Court of first instance.

5. Appellant will get his costs of the appeal in this Court. In the lower Appellate Court each party will bear his own costs.


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