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Ramaswami Naicker and ors. Vs. Chinnathayammal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1928Mad604
AppellantRamaswami Naicker and ors.
RespondentChinnathayammal
Cases ReferredUdit Narayan v. Bat Prasad Singh
Excerpt:
- .....their view that the clause in the decree was never intended to be a direction for the recovery of costs personally from the debtor. as i have already observed, cases of this kind have really no bearing on the question in this appeal. it is impossible to regard that case as an authority for the position that even if the decree should be construed as containing a personal direction to pay, there is any rule or provision of law on which execution can be refused.11. the decision in the case of md. ifti khar ullah v. banke lal a.i.r. 1924 all. 104, only proceeded on a construction of the decree.12. similarly the cases of raj kumar singh v. sheo narain sahu [1908] 35 cal. 431, and kamalamma v. narasimhacharlu [1907] 30 mad. 464, and wahid ali v. durga shankar : air1926all343 , are really to.....
Judgment:

Srinivasa Ayyangar, J.

1. There are no merits whatever in this second appeal, because it is, as admitted frankly, merely an attempt on the part of the appellants to escape liability for payment of costs in appeal decreed by the appellate Court. The argument for the appellants may be briefly put thus: In all mortgage suits for sale whatever costs may be ordered should be realized in the first instance only by the sale of the mortgaged property and it is only if after the sale of the securities it should be found that the sale proceeds are insufficient to pay up the whole amount inclusive of cost to the decree-holder, that the decree-holder can apply for execution against the person of the judgment-debtor. In this case satisfaction of the original decree was entered up by payment of the amount for which the sale was ordered. As satisfaction of the decree for she has been entered up, the property cannot now be brought to sale, and if the argument of the appellants should be accepted that the decree-holder has a right to seek execution against the judgment-debtor personally for costs only after exhausting the securities, then in this case the decree-holder should go without any remedy, because the dilemma on that argument is that he cannot get his costs unless the property is sold and the property cannot now be sold. Though thus the attempt of the appellants is devoid of any merits, still he would have been entitled to succeed if his contention on the law should be bound to be accepted and given effect to. But I am glad to have come to the conclusion that the law is neither so senseless nor so helpless.

2. A large number of cases have been referred to by the learned vakil for the appellants, but before proceeding to refer to any of them, three observations require to be made. The first is, that all questions with regard to the matter have, so far as I am able to see, arisen only in the form whether a decree for costs as such should be allowed to be executed against the person of the judgment-debtor when the security still remains unsold and is available for sale. No Court of law and no decision has been shown to have held that when for some reason the mortgage security is not available for sale, still the decree for costs although subsisting and executable cannot be executed at all. In other words, on considerations, legal or equitable, Courts of law have in some cases merely indicated the steps in the procedure or the priority of recourse to be adopted by the decree-holder. It seems to me, therefore, monstrous to invoke the principle of such decisions for the purpose of bringing about a result which in plain terms deny to the decree-holder any recourse of remedy at all.

3. The second observation I should like to make is that the question must always be regarded as one of construction of the decree and of the intention of the Court to be gathered from the terms of the decree. If a decree on a proper construction should be held to have made the costs payable personally by the defendants, apart altogether from the securities or the sale of them, it seems to me there is not and could not be any rule or principle of law saying that such a decree could not be executed according to its tenor. What the Courts of law have done in all oases which have been cited is to construe the decree, and if in so construing the intention of the Court be not clear, to refer to the rules with regard to the framing of the decrees for the purpose of arriving at the true intention of the Court in making the decree. At best it seems to me that such a process, namely that of calling to aid the rules relating to the form of decrees to be passed for the purpose of construing the decree is itself a process open to question. However that may be, it cannot possibly be pretended that apart from the construction of a decree there can be anything in the rules relating to the frame or form which can require a decree to be understood in any way other than as it says.

4. The third observation I find necessary to advert to before proceeding to discuss the question with reference to the decided cases, is that, if, as a matter of construction, the Court should come to the conclusion that according to the true intent of the decree the decree for costs is liable to be executed personally, then, until and unless the decree itself comes to be altered no rule of law or procedure is ever an answer for such execution.

5. On these observations, it follows that if I should come to the conclusion on a fair and proper construction of the decree before me that according to the true intention of the Court the decree for costs is liable to be executed, the mere fact or circumstance that the decree should not have been made or framed in that particular manner or that under other circumstances the decree should be construed in a particular manner could not possibly affect the question.

6. In this case I have no doubt whatever in my mind that having regard to the terms of the decree, the time at which the order for costs was made, the tribunal by which it was so made and all the surrounding circumstances, the true meaning of the decree and the intention of the Court as expressed in the terms thereof are clearly to the effect that the decree for costs now sought to be executed may. and should be executed personally without any reference whatever to the mortgage security.

7. The order under reference is, so far as the material portion is concerned, in the following terms:

The decree of the lower Court be and the same is hereby confirmed and the appeal is dismissed. This Court doth further order and decree that the appellants do pay respondent 1 Rs. 56-10-2 for her costs of appeal and Rs. 14V-7-9, her costs in the High Court in S.A. 1489 of 14 and do bear their costs of the appeal in this Court.

8. This order for costs was inserted in the decree of the appellate Court by an order of amendment made on 5th March 1924 by the learned District Judge. There is. nothing else in the decree. It is impossible to comprehend how a decree worded in these terms could possibly be regarded as not executable personally. If in that decree there were any reference to any mortgage security or the sale thereof then indeed there might be some room for doubt or for contending that the personal remedy should be postponed till after the sale of the securities. In the absence of any reference in the decree itself to any securities or the sale thereof, it seems to me that to engraft on the decree the intention to postpone the payment of the costs till after the sale of the securities would be absolutely unwarranted. As already stated this order for costs was made by way of amendment on the 5th March 1924, and on, 21st March 1924 the present respondent applied for execution of the said order. Objection to the grant of execution was taken on the ground among others that the original decree had been fully satisfied and satisfaction also recorded and that, therefore, the order for costs was not executable and that the petitioner not having obtained a personal decree 'for execution against the appellants herein after the sale of the mortgage security the order for costs could not be executed (personally.

9. Having regard to the nature of the objection above referred to it is clear that the first part of it was rather an objection to the amendment of the decree alone and cannot possibly be regarded as an objection to the execution of the decree. As regards the latter part of the objection: it is entirely a matter of construction and there is nothing in the decree to suggest that the clear and express intention that the defendant should be personally liable for the costs awarded can be regarded as qualified or controlled by any other part of the decree. The circumstances, therefore, being that the present decree for costs sought to be executed came to be made after the alleged satisfaction of the decree the condition that such entering up satisfaction is an answer to the execution sought cannot be accepted. When the Court, after being informed of satisfaction having been entered up of the original decree, deliberately amends the decree and makes an order against a party for the payment of costs without there being any reference whatever to the mortgage securities, the obvious intention of the Court is that the amount must be paid personally and such a construction alone should be forced or unreasonable which would have i the effect of importing into the decree a reference, which is not there, to the mortgage security or the sale of it.

10. It now remains for me only to refer briefly to the cases that have been cited. The decision of the Full Bench of the Allahabad High Court in the case Maqbul Fatima v. Lalta Prasad [1893] 20 All. 523, was relied upon by the appellants' vakil. That case proceeded entirely on a consideration and construction of the decree and the learned Judges expressed their view that the clause in the decree was never intended to be a direction for the recovery of costs personally from the debtor. As I have already observed, cases of this kind have really no bearing on the question in this appeal. It is impossible to regard that case as an authority for the position that even if the decree Should be construed as containing a personal direction to pay, there is any rule or provision of law on which execution can be refused.

11. The decision in the case of Md. Ifti Khar Ullah v. Banke Lal A.I.R. 1924 All. 104, only proceeded on a construction of the decree.

12. Similarly the cases of Raj Kumar Singh v. Sheo Narain Sahu [1908] 35 Cal. 431, and Kamalamma v. Narasimhacharlu [1907] 30 Mad. 464, and Wahid Ali v. Durga Shankar : AIR1926All343 , are really to the same effect and proceeded on the same ground.

13. The decision in the case of Bulkee Bee v. Kaka Hajee Muhammad Umar Singh A.I.R. 1926 Mad. 415, proceeded on the ground not only of the decree having regard to the rules in the Procedure Code but also on the express ground that a previous application for the same relief had been dismissed.

14. Before I conclude I may refer to the two cases cited by Mr. Srinivasan, on behalf of the respondent. In the case of Muhammad Sadiq v. Ghouse Muhammad [1914] 11 A.L.J. 975, Mr. Justice Piggott, and in the case of Hetram alias Udit Narayan v. Bat Prasad Singh : AIR1926All68 , Mr. Justice Sulaiman have held that an order for costs made by the Court under somewhat similar circumstances was executable personally without reference to the mortgage security. I have already adverted to the circumstances under which I have come to the conclusion that the real intention of the Court in making the order for costs now sought to be executed was that it should be paid personally by the appellant. In that view the appeal is clearly not sustainable. It is, therefore, dismissed with costs.


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