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Rajagopalachaiar Vs. Thiagaraya Mudali - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1925Mad991
AppellantRajagopalachaiar
RespondentThiagaraya Mudali
Cases ReferredSubramania Aiyar v. Balasubramania Iyer
Excerpt:
- .....untouched.3. in second appeal two points have been argued on behalf of the appellant; (1) that the suit bond does not contain a covenant to pay, and (2) that the suit is barred by res judicata by reason of the respondent's failure to get up or reserve the claim in the earlier suit, o.s. no. 88 of 1919. as regards the first point, i am of opinion that the learned district judge is right in his view as regards the personal covenant in the bond. it would serve no useful purpose to examine the various cases brought to my notice, in view of the fact that the answers to the question whether a mortgagor binds himself personally to repay the loan or not 'must depend upon the construction of the mortgage-bond in each case and the intention of the parties as evidenced by the circumstances' per.....
Judgment:

Madhavan Nair, J.

1. The suit out of which this second appeal arises was for the enforcement of Exhibit B, on the basis that it purported to be a hypothecation bond for Rs. 300 executed by the predecessor-in-interest of the appellant in favour of the respondent on the 5th of July, 1913. Personal relief was also claimed as usual against the assets of the deceased mortgagor in the hands of the appellant for any balance that might remain due after the sale of the hypotheca. It would appear that the respondent had a mortgage of a later date 29th March, 1914, over the identical hy-pofeheoa and had obtained decree on it in O.S. No. 88 of 1919 without making any reference to the earlier mortgage which is the basis of this suit. Exhibit II is a copy of the plaint in that suit. The appellant resisted the present suit on four main grounds, viz., (1) that the bond sued on was not genuine; (2) that it was ineffective as a mortgage for want of proper attestation; (3) that the suit was barred by res judicata as the plaint mortgage had not been reserved in the earlier suit; and (4) that personal relief could not be granted as the bond did not contain a covenant to pay.

2. The District Munsif found that the bond was genuine, but he held that no mortgage decree could be given as it had not been duly attested according to law and thus proved inefficacious as a mortgage. He declined to give any personal relief on the ground that the bond did not contain any covenant to pay. He added that there was no force in the plea of res judicataas it was not obligatory to have set up the plaint bond in the earlier suit. However, as a result of his findings that the bond was not enforceable either personally or as a mortgage, he dismissed the suit. In appeal, the learned District Judge also held that the bond was bad as a mortgage, but, differing from the District Munsif on the question whether it contained a personal covenant, he was of opinion that the bond contained a covenant to pay and so granted a decree against the assets of the deceased executant in the hands of the appellant. Apparently in the view that he took of the plaint bond viz., that it did not constitute a valid mortgage, he did not consider it necessary to examine the question whether the failure to reserve the claim in the earlier suit operated as res judicata; at any rate, he left the question untouched.

3. In second appeal two points have been argued on behalf of the appellant; (1) that the suit bond does not contain a covenant to pay, and (2) that the suit is barred by res judicata by reason of the respondent's failure to get up or reserve the claim in the earlier suit, O.S. No. 88 of 1919. As regards the first point, I am of opinion that the learned District Judge is right in his view as regards the personal covenant in the bond. It would serve no useful purpose to examine the various cases brought to my notice, in view of the fact that the answers to the question whether a mortgagor binds himself personally to repay the loan or not 'must depend upon the construction of the mortgage-bond in each case and the intention of the parties as evidenced by the circumstances' per Mookerji, J., in Ghasiram v. Raja Mohan Bikram (1907) 6 C.L.J. 639. The plaint bond is said to be similar in terms to Exhibit A. A perusal of it leaves no room for doubt that it contains a covenant to repay. Strong reliance was placed by the appellant on a decision in Narotam Das v. Sheo Paruash Singh (1884) 10 Cal. 740 but in the present case there is an express and unqualified recital for payment and redemption of the bond. The transaction is also referred to as a loan which implies a promise to pay and creates a personal obligation. In the clause providing for recovery by suit it is expressly stated that the suit should be against the executant. I have, therefore no hesitation in upholding the finding of the learned District Judge to the effect that the bond contains; a personal covenant to re-pay. The law is; well-settled that such a personal covenant could be enforced, even though it is embodied in a bond purporting to be a mortgage, but which fails to operate as such.

4. As regards the second point, the contention of the learned Vakil for the appellant is based upon the position that a mortgagee who has two mortgages of different dates upon the same property, having-sued upon the mortgage of the later data' cannot afterwards bring a suit upon the-prior mortgage unless such right has been reserved in the prior litigation; but strictly speaking the question does not arise in the present case. Both the lower-Courts have found that the plaint bond did not constitute a valid mortgage. This was also the appellant's case all along. The respondent has not thought it fit to challenge this finding. In the present, second appeal, it is not the case of any one that the plaint bond ever constituted a mortgage; and, therefore, the rule of law enunciated above which is concerned with two mortgages has no application whatever and no necessity arises to apply the principle enunciated in Dhondo Ram Chandra v. Hikoji Gopal (1915) 39 Bom. 138 and accepted in Subramania Aiyar v. Balasubramania Iyer (1918) 38 Mad. 927. It cannot be contended that a mortgagee holding a separate money-bond against a mortgagor is under any obligation to enforce the money-bond along with; the mortgage, or even to refer to its existence in his plaint seeking to enforce the mortgage. The present plaint bond being, a simple money-bond and nothing more bears the same relation as the money-bond referred to above to the mortgage-bond sued on in O.S. No. 88 of 1919 and there was no obligation to have made the remotest reference to it in the plaint in that suit. The fact that the respondent chose regard it as a mortgage-bond, cannot in my view, alter its legal character or invest it with the incidents foreign to its true character. The learned Vakil for the appellant referred to the provision of Order 2, Rule 2 of the C.P.C., but that has no application in the view that I take, viz., that the plaint bond is a simple money-bond. The cause of action is entirely different and has no connection with the claim on the mortgage-bond sued on in O.S. No. 88 of 1919.

5. In the result, I hold that the plaint bond contains a personal covenant to repay which is capable of enforcement. The second appeal, therefore, fails and is dismissed with costs.

In S.A. No. 1498 of 1923.

6. For reasons given in the above second appeal, this second appeal is also dismissed with costs.


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