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Komandur Kamalammal Vs. Komandur Narasimhacharlu and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in17Ind.Cas.244
AppellantKomandur Kamalammal
RespondentKomandur Narasimhacharlu and ors.
Cases ReferredKamalammal v. Komandur Narasimhacharlu
Excerpt:
.....procedure code (act v of 1908), order xxxiv, rule 6 - mortgage suit--successful party--personal decree for costs. - t.n. district police act, 1859 [act no. 24/1859]. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); [a.p. shah,c.j., f.m. ibrajhim kalifulla & v. ramasubramanian, jj] rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article 309 of the constitution., the rule is not..........to have a personal decree against the defendants for his costs in that suit. he sought to have the decree amended so as to give him such personal decree, but this court decided see report of the case in kamalammal v. komandur narasimhacharlu 30 m.k 464 : 2 m.l.t. 359 that the application was premature and that such a decree could only be given if the sale proceeds should prove insufficient to satisfy the amount due under the mortgage including costs. the property has now been sold and has proved insufficient.2. the appellant is, we think, entitled, under order xxxiv, rule 6 of the code of civil procedure, to now have a personal decree against the respondents for the amount of costs not covered by the sale-proceeds, viz., rs. 223-0-11, with costs throughout.
Judgment:

1. We do not think that the order of the Court below can be supported. The present appellant, who was the successful party in the mortgage suit, which was defended at every stage by the present respondents, was entitled to have a personal decree against the defendants for his costs in that suit. He sought to have the decree amended so as to give him such personal decree, but this Court decided see report of the case in Kamalammal v. Komandur Narasimhacharlu 30 M.K 464 : 2 M.L.T. 359 that the application was premature and that such a decree could only be given if the sale proceeds should prove insufficient to satisfy the amount due under the mortgage including costs. The property has now been sold and has proved insufficient.

2. The appellant is, we think, entitled, under Order XXXIV, Rule 6 of the Code of Civil Procedure, to now have a personal decree against the respondents for the amount of costs not covered by the sale-proceeds, viz., Rs. 223-0-11, with costs throughout.


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