PRADYUMNAKUMAR MALLIK Vs. GOPENDRA MALLIK

JUDGEMENT

(1.) This suit was brought, on 26 July 1921, by two persons of the name of Ray-mortgagees under an English mortgage, dated 13 February 1920 against two sets of defendants-against a first set as mortgagors and against a second set as puisne mortgagees. The suit was an ordinary suit for the enforcement of the mortgage. On 18 August 1921 a receiver of the mortgaged property was appointed; on 12 April 1922 a preliminary mortgage decree for sale was passed in the usual form. It was a decree under Rule 4, Order 34, Civil P.C.

(2.) The usual form of mortgage decree on the original side of this Court is not literally and exactly in conformity with Form No. 4, Appendix D, Sch. 1 of the Code, which has reference to Clause (b), Rule 2, Order 34, It is usually necessary to direct the taking of accounts as contemplated by Clause (a) of that rule. In the present case, apart from directions given for the benefit of the puisne mortgagees, the preliminary decree directed accounts to be taken of what would be due to the plaintiffs for principal and interest on a certain future date, and it further directed that the plaintiffs costs of the suit should be taxed as between attorney and client. It then provided that, upon the defendants or any one of them, within a certain time, paying what should be reported to be due for principal and interest together with the plaintiffs taxed costs with interest thereon at 6 per cent per annum from the date of taxation until realization, the defendants should get back the property. But that if such payments were not made by the time appointed, certain further interest and costs should be added as part of the amount payable to the plaintiffs under the decree; that the property be sold and the money to arise by the sale be paid into Court and applied first in payment of the amount payable to the plaintiffs under the decree, and so forth in accordance with Rule 4, Order 34. In accordance with the rules of the High Court, a clause was inserted to the effect that, if the money to arise by the sale should not be sufficient, the plaintiffs should be at liberty to apply for a personal decree for the amount of the balance. In Courts other than the High Court, the costs of the suit are not referred to a Taxing Officer for taxation, but are summarily assessed and are inserted in the decree itself in the manner disclosed by Form No. 1, Appendix D.

(3.) The Registrar took the accounts under this decree and, on 21 August 1922, made his report stating what would be due. for principal and interest on the security on 12 March 1923. The plaintiffs solicitors however had not carried in their bill of costs for taxation at this stage. On 16 April 1923, the final decree for sale was passed which simply recited the preliminary decree and the fact that payment thereunder had not been made. It ordered the premises to be sold and gave leave to the plaintiffs to bid with the usual consequential directions. It may be noticed that the decree provided for the plaintiffs costs of the suit subsequent to the preliminary decree and for taxation thereof. The present appellant thereafter took an assignment of the rights of the plaintiffs and obtained an order on 25th August 1924, substituting him in their stead as the plaintiff. The mortgaged property was thereafter sold by the Registrar in different lots, the last lot being sold to the present appellant on 27 February 1926. This sale was confirmed by an order of the Court made on 29 March 1926. On 4 December 1931, the appellant, by notice of motion, instituted the proceeding out of which this appeal arises. In this proceeding he asked for a personal decree to be passed against the mortgagor defendants for the sum of Rs. 2,67,513, as being the balance due to him after realization of the mortgaged property. The learned Judge has dismissed this application on the ground that it is barred under Art. 181, Schedule to the Lim. Act of 1908, which requires the application to be made within three years from the time when the right to apply accrues.