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Adhar Chandra Naskar Vs. Sarnwamoyi Dasi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1929Cal121,117Ind.Cas.530
AppellantAdhar Chandra Naskar
RespondentSarnwamoyi Dasi
Cases ReferredIn Periasami Koni v. Muthia Chettiar
Excerpt:
- .....the present suit as puisne mortgagee were parties. a decree was obtained in execution of which the property mortgaged with the plaintiff was sold in satisfaction of the debt due to the prior mortgagee. thereafter the plaintiff made an application to the court for a decree under order 34, rule 6, civil p.c. that application was granted and a decree has been passed under that rule in favour of the plaintiff.2. the defendant appeals and it is contended on his behalf that the trial court had no jurisdiction to pass a decree under order 34, rule 6, before the plaintiff had exhausted all his remedies under the decree obtained by him, in other words, before ho had sold the mortgaged property or attempted to sell it, and that only in the event of a balance of the debt remaining unpaid that he.....
Judgment:

Suhrawardy, J.

1. The appellant in this case has been described as the judgment-debtor but he is in reality the defendant in the suit out of which the present appeal arises. The facts are that the plaintiff as second mortgagee in respect of certain properties brought a suit on his mortgage and obtained a final decree. But before he could execute the decree, a suit was brought by a prior mortgagee on his mortgage to which the mortgagor and the plaintiff in the present suit as puisne mortgagee were parties. A decree was obtained in execution of which the property mortgaged with the plaintiff was sold in satisfaction of the debt due to the prior mortgagee. Thereafter the plaintiff made an application to the Court for a decree under Order 34, Rule 6, Civil P.C. That application was granted and a decree has been passed under that rule in favour of the plaintiff.

2. The defendant appeals and it is contended on his behalf that the trial Court had no jurisdiction to pass a decree under Order 34, Rule 6, before the plaintiff had exhausted all his remedies under the decree obtained by him, in other words, before ho had sold the mortgaged property or attempted to sell it, and that only in the event of a balance of the debt remaining unpaid that he had the right to apply for a decree under that rule. On the wording of the rule it would seem that the contention of the appellant has some substance. But a recent decision of their Lordships of the Judicial Committee has to my mind settled the point in controversy. In Jeunu Bahu v. Parmeswar Narain A.I.R. 1918 P.C. 159 a decree was passed in favour of the mortgagee which was a combined decree under Sections 89 and 90, T.P. Act, corresponding to Rule 5 and 6, Order 34, Civil P.C., The same objection as is now urged before us was pressed at their Lordships' Bar but it was overruled. On the point with which we are now concerned the following observation was made:

The appellants contend that the opening words establish as a condition precedent to the power of decreeing payment of the balance that the mortgaged property must first be sold and found insufficient to satisfy the debt. It is admittedly a strict and technical construction of the statute and one for which no reason can be assigned and from which no advantage can possibly be derived by any mortgagor. It would be unfortunate if the statute by its terms rendered necessary the adoption of this contention but in their Lordships' opinion it is not necessary so to construe the Act.

3. The principle on which the decision of their Lordships is based is that on a reasonable construction of the statute a decree may be passed under Section 90, even before the condition contemplated by the section has been followed; that is, before it has been ascertained that the proceeds of the sale of the mortgaged properties are. insufficient to pay the mortgage debt. And it is in accord with English law. Fisher on Mortgage, Sections 806, 990. In this view of the decision of the Judicial. Committee the rulings of this Court and of the Allahabad High Court which held a contrary view must be deemed to have been overruled such as Ramranjan Chakravarty v. Indra Narayan Das [1906] 33 Cal. 890, Chand Mal v. Ban Behary : AIR1924Cal209 , Lakhi Narayan v. Krithibas Das [1913] 18 0. L.J. 133, Badri Das v. Inayat Khan [1900] 22 All. 404 and Kamta Prasad v. Syed Ahmad [1909] 31 All. 373. Now if a combined decree under Rules 5 and 6, Order 34, can be passed before the mortgaged property has. been sold and the sale proceeds found insufficient, there seems no reason why a decree cannot be passed under Rule 6 before that under Rule 5 has been executed. In other words, the difference between the decree before the Judicial Committee and the present decree is that in that case there was a combined decree under Rule 5 and 6 of Order 34, Civil P.C., and in the present case there are two decrees one under Rule 5 and another under Rule 6. The only differene is that in one case there-was a combined deree and in the other case there are two decrees which taken together would have the effect of combined decree. There is difference in form butt not in principle.

4. Then again under Section 68, T.P. Act, the mortgagee has the right to bring a suit for the mortgage money when the mortgaged property has been wholly or partially destroyed or the security rendered insufficient. The plaintiff's case is that the mortgaged property was lost, to his mortgage and it is not now available as security for his debt. He has accordingly asked for a personal decree under Rule 6. Had he not brought a suit upon his mortgage he would certainly have been entitled under Section 68, T.P. Act, to sue the mortgagor for the mortgage money or to sue on the original consideration for the money lent. I do not think that for simply bringing a fruitless suit on his mortgage he should be held to be without any remedy. To give full effect to the contention of the appellant is to hold that even though the mortgaged property ceased to exist or become available to the mortgagee for the purpose of realization of his dues, the mortgagee cannot claim a decree under Rule 6 or any decree for that matter, and must lose his money, or he must go through the farce of attempting to sell the mortgaged property which at the time may not be existing or may not be available. This is the view taken by the Madras High Court on this point before the pronouncement of the Judicial Committee in the case of Jeunu Baku v. Parmeshivar Narayan A.I.R. 1918 P.C. 159. In Shanmuya Pillai v. Ramanathan Chetti [1894] 17 Mad. 309, the property mortgaged was found not to belong to the mortgagor but to a third party. It has been held that in the circumstances the mortgagee was entitled to claim a money decree against the mortgagor. In Periasami Koni v. Muthia Chettiar [1915] 38 Mad. 677, it was held that when the judgment-debtor has no saleable interest in the properties directed to be sold the decree-holder need not go through the farce of putting them up to sale. The remark of the learned Judge is happily worded and may be quoted here:

If of course the mortgaged properties directed to be sold under the mortgage decree do not belong to the mortgagor, the mortgagee need not be compelled to resort to the farce of bring them to sale and to undergo useless delay involved in bringing them to sale, because it is an elementary principle of law that the Court will not do a vain thing, nor will it compel a man to do a fruitless thing.

5. It is not the appellants' case that there is any other remedy open to the plaintiff to satisfy his decree under the mortgage. It would seem absurd that the plaintiff should be compelled in order to entitle him to get a decree under Rule 6 to attempt to sell a property which belongs to a third person. In this view the objection on the ground that the decree passed by the Court below is ultra vires must be over' ruled. This appeal accordingly fails and is dismissed with costs.

Cammiade, J.

6. I agree. As my learned brother has said, the proposition that it is necessary for the mortgagee to put to sale the mortgaged property before a personal decree can be obtained against the mortgagor cannot be maintained. What the mortgagor should prove in order to be able to set up a contention of this sort is that there was something which the mortgagee could recover by such sale. Such a contention was never made. The mortgagor appellant filed a written objection to the application made by the mortgagee respondent for a final decree; but he did not think it worth his while to come forward and support the objection filed by him. ft is not even suggested that the property which was the subject of the two mortgages was worth anything more than what it fetched at the sale held in execution of the decree on the first mortgage. In these circumstances it would be grossly unjust to require the respondent to go through the empty formality of a second sale which would have' been productive of no result. It would also have been foolish to require him to redeem the first mortgage, as he could recover nothing. In all these circumstances the only possible course which the Court below could follow was to give a personal decree against the mortgagor.


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