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Chand Mall Babu Vs. Ban Behari Bose - Court Judgment

LegalCrystal Citation
SubjectProperty ;Civil
CourtKolkata
Decided On
Judge
Reported inAIR1924Cal209,74Ind.Cas.1021
AppellantChand Mall Babu
RespondentBan Behari Bose
Cases Referred and Darbari Mal v. Mula Singh
Excerpt:
civil procedure code (act v of 1908), order xxxiv. rules 5 6, object of - mortgage-decree--mortgaged properly, portion of, not available for sale--personal decree, whether can be passed--contract act (ix of 1872), sections 43, 44--joint judgment-debtors--release of one judgment-debtor, effect of. - .....1918, a preliminary decree was made in the trial court on the basis of the later mortgage. the decree-holder preferred an appeal to this court with the result that on the 8th may, 1919, this court increased the amount recoverable by the mortgagee from the mortgagor. this order was subsequently carried out by the subordinate judge in the manner following, namely, a final decree was made by him on the 30th august, 1919, on the basis of the decree made by this court. in the interval between the date of the preliminary decree by the trial court and the final decree made by that court pursuant to the decree of the high court, some of the properties had been sold. two properties were sold under regulation viii of 1819 and in execution on the 15th may 1918 and the 22nd march 1919,.....
Judgment:

1. This appeal is directed against the dismissal of an application under Rule 6 of Order 34 of the Code of Civil Procedure of 1908. The facts material for the decision of the questions raised before us really lie in a small compass and may be briefly recited.

2. One Ananda Chandra Bose died leaving a widow and seven sons. Three of these sons died childless with the result that their interest in the ancestral estate was inherited by their mother. The position consequently was that the widow became entitled to a 3/7th share and the remaining 4/7th share was divided equally amongst the four sons. On the 16th April 1903, two of the sons executed a mortgage in favour of the appellant to secure a loan of Rs. 15,000. There were six properties given by way of security, and what was hypothecated was the 2/7th share of the two mortgagors in the properties mentioned. On the 19th April 1905 the widow and three of the sons executed another mortgage in favour of the appellant to secure a loan of 10,000. Two of these sons were executants of the earlier mortgage. There were twelve properties given by way of security, and these included the six covered by the previous mortgage. The position consequently was that a 6/7th share in the hypothecated proper, ties was given by way of security, while the 2/7th share of the two sons in six out of the twelve properties was covered by the earlier mortgage. On the 14th May 1915 a preliminary decree was made on the earlier mortgage; this decree was made final on the 22nd January, 1916. On the 14th February, 1918, a preliminary decree was made in the trial Court on the basis of the later mortgage. The decree-holder preferred an appeal to this Court with the result that on the 8th May, 1919, this Court increased the amount recoverable by the mortgagee from the mortgagor. This order was subsequently carried out by the Subordinate Judge in the manner following, namely, a final decree was made by him on the 30th August, 1919, on the basis of the decree made by this Court. In the interval between the date of the preliminary decree by the trial Court and the final decree made by that Court pursuant to the decree of the High Court, some of the properties had been sold. Two properties were sold under Regulation VIII of 1819 and in execution on the 15th May 1918 and the 22nd March 1919, respectively. The surplus sale-proceeds were applied in reduction of the sums due on the preliminary decrees under the two mortgages. The result was that when the final decree on the later mortgage was made on the 30th August, 1919, it was found that Rs. 7,353-2 was still due Since then, other properties have been sold for arrears of rent, for arrears of revenue, and in execution of the mortgage decrees. The decree-holder maintains that the sale-proceeds so realised have not been sufficient to satisfy his claim, and he has consequently applied for a personal decree under Rule 6 of Order 34 of the Civil Procedure Code. The application has been dismissed by the Subordinate Judge on the ground that the decree-holder has not complied with the requirements of its provisions.

3. Order 34, Rule 6, is in the following terms : 'where the net proceeds of any such sale are found to be insufficient to pay the amount due to the plaintiff, if the balance is legally recoverable from the defendant otherwise than out of the property sold, the Court may pass a decree for such amount.' It is plain that the expression 'any such sale' has reference to Rule 5, Sub-rule (2), which ordains that if payment is not made as directed by the preliminary decree, the Court shall, on application made in that behalf by the plaintiff, pass a decree that the mortgaged property, or a sufficient part thereof, be sold, and that the proceeds of the sale be dealt with as is mentioned in Rule 4. Consequently before the plaintiff can invoke the aid of the provisions of Rule 6, he must establish that the mortgaged properties have been sold as contemplated by Sub-rule 2 of Rule 5. If this is construed according to the strict letter of the law, it may be possible to maintain that Rule 6 cannot come into operation where the sale has taken place, not in execution of the final decree as contemplated by Rule 5 but otherwise, for instance under proceedings taken in accordance with Regulation VIII of 1819. This contention has not been put forward and cannot be supported in the face of the decision in Satis Ranjan Das v. Mercantile Bank of India (1917) Cal. 702. In that case it was pointed out that the object of the rules obviously is that the remedy of the mortgagee should, in the first instance, be against the property mortgaged, and that such property should be exhausted before a personal liability was imposed upon the mortgagor. But the rules surely cannot mean that if a portion of the property, however small which was included in the mortgage and therefore included in the mortgage decree as a portion of what was to be sold, is destroyed or has 6eased to be available for sale after the date of the decree, through no fault of the mortgagee there can be no decree for personal liability against the mortgagor. We are of opinion that this interpretation of Rule 6 of Order 34 is reasonable and should be adopted. In the case before us, it has not been urged that Rule 6 has ceased to be applicable because some of the properties were sold at the instance of the superior landlord either under Regulation VIII of 1819 or in execution of a decree for arrears of rent which constituted a prior charge thereupon.

4. But it has been urged that the mortgagee is not competent to invoke the aid of Rule 6, because there are other properties against which he is still bound to proceed before he can claim the personal remedy. Our attention has been invited to the fact that on the 6th January; 1920, the mortgagee put up lo sale a share of three properties in execution of the decree on the earlier mortgage and purchased them himself. Again, on the 1st March 1920 the mortgagee brought the remaining shares and the shares in the other properties to sale in execution of the decree on the later mortgage. The contention of the respondent is that the sale of a share of the three properties on the 6th January, 1920, under the earlier mortgage, does not entitle the decree-holder to absolve that share from sale in execution of the decree on the later mortgage. The argument is that the share in question was subject to two mortgages and that the sale in execution of the decree on the first mortgage has not vested the property in the purchaser free from liability under the second mortgage. This is a point which requires further consideration. The question must be decided by reference to the circumstances under which the sale of the 6th January 1920 was held. If the sale was held under such conditions as to vest the property in the purchaser free from liability to sale under the subsequent mortgage, the decree-holder must be deemed to have done all that he could to bring the mortgaged properties to sale, so as to entitle him to the benefit of the provisions of Order 34, Rule 6. Without a fuller knowledge of all the facts than can be gathered from the record, we cannot affirm that the share subject to both mortgages, is or is not liable to be resold.

5. We shall next examine the other reason assigned by the Subordinate Judge why the mortgagee decree-holder should be deemed incompetent to avail himself of the remedy prescribed by Order 34, Rule 6. It appears that the mortgagee decree-holder has released from liability one of the mortgagors. The Subordinate Judge holds that the result of this is to deprive him of his right to a personal decree. This view is erroneous and is contrary to the provisions of Sections 43 and 44 of the Indian Contract Act. As was pointed out in the case of Bhuwani Koar v. Darsan Singh [1911] 14 CL.J. 354, the law under the Indian Contract Act is in this respect materially different from the rule recognized in the Common Law of England. The rule adopted by the Indian Legislature is that joint liability implies joint and several liability and that a creditor is entitled to a decree for the entire amount against any one of the debtors. This view is in accordance with that adopted in Krishna Charan Barman v. Sanat Kumar Das [1916] 44 Cal. 162. The same view was followed by the Madras High Court in Mool Chand v. P. Alwar Chetty [1915] 39 Mad. 548, where it was ruled that the release of one of sever-al joint judgment-debtors does not, affect the right of the decree-holder to proceed against the other judgment-debtors. We are not unmindful that there are cases in the Allahabad High Court, namely, Badridas v. Inayat Khan [1900] 22 All. 404, Kamta Pershad v. Sayed Ahmed [1909] 31 All. 373 and Darbari Mal v. Mula Singh [1920] 42 All. 519 which may lend weight to the contention of the respondent; but the view we take is supported by principle as well as authority. We are clearly of opinion that the fact that the decree-holder has released Atul does not affect his position in any way. The limited question which requires investigation is, whether after the purchase of the properties brought to sale by the decree-holder on the 6th January 1920, he is still under an obligation to bring that specific share to sale in execution of the decree on the later mortgage; for this purpose, the decree-holder is in no worse position than a stranger purchaser.

6. We may add that it has been asserted before us that there are assets in connection with some of the sales for which the judgment-debtors are entitled to credit. This will be investigated by the Subordinate Judge. We may further add that we express no opinion, upon the question whether a person who holds two decrees on two mortgages is or is not competent to execute the decree on the subsequent mortgage reserving his rights under the prior mortgage; that question, as is well known, is not free from difficulty and has led to divergence of judicial opinion.

7. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and the case remitted to him for reconsideration on the lines indicated. The costs of this appeal will abide the result. We assess the hearing fee at three gold mohurs.

8. The amount in deposit on account of court-fees will be returned to the appellant.


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