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Rutnessur SeIn and ors. Vs. Jusoda and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
AppellantRutnessur SeIn and ors.
RespondentJusoda and anr.
Excerpt:
execution of decree - decree on mortgage bond--costs against judgment-debtors personally. - .....under section 220 of the code of civil procedure to direct that the defendants should pay this money personally, i see no reason why the plaintiffs should not be allowed to execute the decree for this sum. the judge has refused to allow them to execute the decree for this sum. i think that he is wrong, and therefore this appeal must be allowed, and the plaintiffs, the mortgagees, must be allowed to execute their decree for costs amounting to rs.312 against the defendants personally or against any other property of theirs.5. the appellants will have their costs in all the courts.beverley, j.6. in addition to what has fallen from my lord the chief justice, i wish to add that, in my opinion, the plaintiffs are entitled to execute their decree for costs under section 87 of the transfer.....
Judgment:

W. Comer Petheram, C.J.

1. I think that this appeal must be allowed.

2. This is an action to recover certain mortgage money, and the only question in the case is whether the plaintiffs, in addition to recovering the mortgage money from the property, are entitled to recover the costs of the suit from the debtors personally, that is to say, whether they can get execution against any other property of theirs after the mortgage property has been exhausted. In my opinion the only question is, whether the decree, as given by the Judge who tried the case, intended to give the costs against the debtors personally, because I am clearly of opinion that, under Section 220 of the Code of Civil Procedure, the Judge had jurisdiction to decree the costs against the debtors personally if he thought fit to do so. Therefore, as I said before, the question is, whether upon a construction of the decree which was made by him we are to hold that he has decreed the costs against the debtors personally.

3. I think that he has. The decree proceeds to assess the amount which was due for principal and interest, and the amount due for costs, and then to make an order that the mortgagor shall pay the whole, that is to say, the debt and costs. By The terms of the security it is admitted that the Judge had no right under that security to give judgment against the debtors personally for the amount of the principal and interest, but by virtue of Section 220 he had jurisdiction to give judgment against them personally for the costs. Reading the decree as a whole it declares, as I said before, that this man shall pay the whole of both sums of money. A declaration that he shall pay the whole means that he shall pay it out of any property of his ; the liability to pay is not limited to any particular property.

4. The only question is, having decided that this is an order against the debtors to pay the whole, whether such an order is capable of execution. Now, it may be that, so far as the principal and interest are concerned, if it were sought to put the decree in execution to recover those sums against the debtor personally, there might be an answer, because, looking to the terms of the mortgage security, the property and not the individual was made liable; but this is not an application to execute the decree for the mortgage money and interest, but for the costs only; and inasmuch as the decree stands for the whole sum, and as the legal difficulty does not exist to bar execution for the costs which would exist with reference to the mort gage money and the interest, because the Judge had power under Section 220 of the Code of Civil Procedure to direct that the defendants should pay this money personally, I see no reason why the plaintiffs should not be allowed to execute the decree for this sum. The Judge has refused to allow them to execute the decree for this sum. I think that he is wrong, and therefore this appeal must be allowed, and the plaintiffs, the mortgagees, must be allowed to execute their decree for costs amounting to Rs.312 against the defendants personally or against any other property of theirs.

5. The appellants will have their costs in all the Courts.

Beverley, J.

6. In addition to what has fallen from my lord the Chief Justice, I wish to add that, in my opinion, the plaintiffs are entitled to execute their decree for costs under Section 87 of the Transfer of Property Act. I think we must take it that the decree in this case was, amongst other things, a decree for costs, the exact sum being named, and the real question before us is, whether the personal liability to pay those costs is discharged by the decree absolute for possession of the property. Now the 4th clause of Section 87 says, that the foreclosure will only discharge the debt secured by the mortgage, and therefore it seems to me it was not intended that the foreclosure should discharge the decree for costs.

7. I accordingly concur in allowing this appeal.


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