1. The appellant is defendant 2 in a mortgage suit. The suit was originally instituted against five defendants, and was for enforcement of a bond executed on 1st April 1915 to secure repayment of a sum of Rs. 10,000. The due date of repayment under the bond was at the end of one year. The suit was filed on 27th April 1929, when it is admitted, the claim to recover a personal decree against the mortgagors had already become barred. The mortgagee's remedy therefore lay only against the mortgaged properties. On 28th November 1930, the trial Court passed the usual preliminary decree against defendants 3, 4 and 5 only, but dismissed the suit against defendants 1 and 2, the reason for such dismissal being that so far as these two defendants were concerned, evidence of attestation of execution was defective, and also that the claim against them was time-barred. The plaintiff mortgagee appealed to this Court against this partial dismissal of the suit. The appeal being F.A. No. 105 of 1931 was disposed of by this Court on 8th March 1935, when the decision of the trial Judge was set aside, and the case remanded to that Court for a fresh decision on the question of attestation. And then an order for costs was made in the following terms:
The plaintiff-appellant is entitled to get his costs in this appeal from defendants 1 and 2, respondents; the hearing fee in this Court is assessed at 3 gold mohurs. The costs in the Court below will abide the final decision of the Court below after remand.
2. It is the costs of the appeal in the High Court awarded by this order that is the subject-matter of the present proceeding. The result of the remand was that on 26th November 1935 there followed a preliminary decree against defendants 1 and 2. It directed that in default of payment of the decretal amount
the mortgaged properties be sold by auction and that interest and other terms mentioned in the previous decree be enforceable against defendants 1 and 2 as well as against defendant 6,
3. Defendant 6, it should be stated, was added as a party after remand as being a subsequent purchaser of defendant 1's and 2's interest in the mortgaged properties. The decretal amount included the costs of the trial Court amounting to Rs. 1138-1-0 for the original hearing and Rs. 7-8-0 for the hearing on remand, but not the costs of the High Court appeal which amounted to a sum,of Rs. 996-11-0. On failure of defendants 1, 2 and 6 to pay the decretal amount, a final decree for sale was passed on 3rd February 1936, and the mortgaged properties were actually sold thereunder on 24th September 1936. The sale fetched only a sum of Rs. 10,500 which was insufficient to pay the amount due to the plaintiff under the decree by about Rs. 3000. In view of the fact, as already stated, that the balance was not legally recoverable from the defendants personally, the plaintiff could not make any application under Order 34, Rule 6, Civil P.C. On 9th December 1937 however, the plaintiff filed an application for execution of the decree which this Court had made on 8th March 1935, for the costs of the appeal amounting to Rs. 996-11-0. It is out of this application that the present appeal has arisen. The application, it may be stated, was directed only against defendant 2, and sought to attach his salary to the extent of Rs. 100 a month. Defendant 2 opposed the execution mainly on the ground that the decree for costs could not be executed against him personally. His contention was that the costs of the High Court appeal properly formed part of the amount due under the mortgage decree, and were therefore primarily recoverable by execution against the mortgaged properties; it was only if the sale proceeds were insufficient that the plaintiff could take out personal execution under Order 34, Rule 6, provided a personal decree under this Rule was still open to him. In the present case, a personal decree was already barred at the date of institution of the suit, and the mortgaged properties had also been completely sold out, so that the effect of the objection taken was to negative the claim of the plaintiff to the costs of the High Court appeal altogether. The learned Subordinate Judge was unable to accept defendant 2's contention, and hence this appeal.
4. In support of the appeal, Mr. Chandra Sekhar Sen relies strongly on a decision of this Court in Bhadur Singh Dugar v. Basiruddin Ahammad : AIR1925Cal1135 , the facts of which case, he says, are very similar to those of this. The terms of the decree of the High Court in that case are not fully set out in the judgment, and we do not know if the decree there drew a distinction between the costs of the trial Court and the costs of the High Court on appeal as in the present case. This, to our mind, is an important consideration in order to see what was really intended by the decree, The decree in this case dealing with costs was in these terms:
And it is further ordered that the costs in the Court below do abide the final decision of the Court below after remand : And it is further ordered and decreed that the respondents do pay to the appellant the sum of rupees nine hundred and ninetysix and annas eleven only (as per details at foot), being the amount of costs incurred by him in this Court with interest thereon at the rate of six per cent, per annum, from this date until realization.
5. It is quite plain that so far as the costs of the Court below were concerned, they were in effect made a part of the mortgage decree which might be subsequently passed, but not only was there no such direction regarding the costs of the appeal, but there was an express order that the same shall be paid by the respondent to the appellant. Obviously therefore the Appeal Court did not intend to treat the costs of both Courts on the same footing, and in our view it would be a perfectly reasonable construction of the decree to hold that as regards-the costs of the appeal the decree was quite-an independent one and meant to be effective as such, irrespective of the final result of the suit after remand on which the costs of the trial Court were made to depend. It is not disputed, and need not be disputed for the purposes of this case, that an order for costs in a mortgage suit is, as a rule, a part of the mortgage decree, and that the decree-holder is required to proceed against the mortgaged properties in the first instance for recovery of such costs before he-can proceed against the mortgagor personally: in other words, that the general-rule is to add the costs of suit to the mortgage security. This is borne out by the terms of Rules 2, 3, 4 and 5 of Order 34, and is also clear from the terms of Rule 10 of the same order. But although this is so, it is not, and cannot on the authorities be, contended that the Court may not in an appropriate case make an order for costs in a mortgage suit which shall be recoverable from the mortgagor otherwise than out of the mortgaged property. It will: really be a question in any particular case as to what the Court actually did. Mr. Sen's argument therefore finally took the form that where the terms of the decree are ambiguous, it ought not to be construed in a manner which would make it repugnant to the general rule of law. This may be conceded, but giving full effect to this contention, it is permissible still to point out that the right and discretion of the Court, to make an order for costs personally against the mortgagor is as much a part of the general law as that which requires costs to be added to the security. The mere absence of words that the decree is made personally against the mortgagor is, in our opinion, not at all conclusive. Apart from such words, there might yet be sufficient indications in the terms of the decree itself and in other circumstances of the case to show that a personal-decree was intended.
6. In this case, apart from the circumstance to which we have already adverted, there is another important fact which tends to support the construction indicated, namely that the costs in question were awarded not against all the mortgagors, but only against two of them who were parties to the appeal. To allow such costs to be added to the security, in the absence of express direction to that effect in the decree, would be practically to throw a liability on all the mortgagors, which might be wholly unjustified. It may be that it may be possible for co-mortgagors to work out the equities as between themselves by a contribution suit, where some of them are made to discharge a burden which primarily rests on the others, still the Court should avoid doing anything which would unnecessarily involve such a course. Taking all the facts and circumstances of the present case into consideration, we are inclined to say, as was said by Jenkins C.J. in Mohunga Ojha v. Ram Bahadur Singh (1912) 16 C.W.N. 731, in cases of this kind what we have to see is not what decree the Court ought to have passed, but what decree the Court has passed, and hold that the construction which was put upon the decree by the learned Subordinate Judge was the right construction. Again, in the words of the learned Chief Justice, we may add, we see no reason to differ from this, more particularly when it is borne in mind that these were costs not of the suit but of the appeal. The result is that the appeal fails, and is dismissed with costs; hearing fee 3 gold mohurs.
7. I agree.