BENI MADHO LAL Vs. JANKI PANDEY

JUDGEMENT

(1.) This appeal must clearly be allowed. The question was whether the appellant is entitled to a decree under Order XXXIV, Rule 6, Civil Procedure Code. The mortgagees first brought a suit to enforce what purports to be a dakhali-rehan deed. We understand that, that suit was dismissed by the trial Court on the ground that the usufructuary mortgagees had been given possession of the property. This view was overruled in appeal in 1924 and a decree was made in favour of the mortgagees on the ground that they had not been put into possession of the mortgaged land as stipulated. In execution of this decree the mortgaged property was put to sale, but even this did not satisfy the mortgage dues. The plaintiff, who had taken an assignment of the mortgage decree and had been proceeding in execution, thereupon applied for a decree under Order XXXIV, Rule 6 of the Code, and the mortgagors resisted the application in the trial Court on the ground of limitation, and on the further ground that as assignee the plaintiff or applicant was not entitled to obtain a decree under Order XXXIV, Rule 6. These objections were overruled by the trial Court. The mortgagors then appealed, and in appeal a different point altogether was taken, viz., that "a personal covenant is not created or implied by a usufructuary mortgage". The learned District Judge gave effect to this contention in the face of the terms of the bond in suit and was of opinion that the decree obtained by the mortgagees was not strictly a mortgage decree but at best a charge decree.

(2.) The learned Advocate, who appears for the appellant, has pointed out that even if it were a charge decree, Order XXXIV, Rule 15, Civil Procedure Code would entitle the appellant to obtain a decree under Rule 6 of that order. The dakhali- rehan deed has been placed before us. It begins by stating that the mortgagors have taken a loan which they expressly promise to pay by a certain date. It is next stipulated that in the event of non-payment, the creditors will be put in possession of certain property as dakhali-rehandars until payment. There is a further stipulation that if the creditors through any act done by the mortgagors or in any manner fail to get possession over the said land, they shall be at liberty to realize the principal with interest "from our person and properties or from the rehan property in any manner they like". The learned District Judge failed to give full effect to this stipulation and treated the applicant as if his rights were no greater than those of a usufructuary mortgagee pure and simple, if as much. The mortgage before us is of an anomalous kind, and the rights and liabilities of the parties to it must be determined by their contract as evidenced in the mortgage deed. The learned District Judge curiously enough had great doubts whether the bond in suit created any mortgage at all, but the repeated mention of the rehan property and the provision that the mortgagees shall be put in possession as dakhali-rehandars are more than sufficient to displace any such doubt.

(3.) The learned Advocate for the respondents has endeavoured to support the decree of the lower Appellate Court by urging that a usufructuary mortgagee who obtains a decree under Section 68, Transfer of Property Act, is not entitled to a decree under Order XXXIV, Rule 6, against the mortgagor personally. As I have already said, however, we have in the present case to deal with the parties on the basis of the contract entered into by them. The contract clearly entitles the mortgagees in the contingencies that have happened to recover the balance of their loan from the person and properties (even apart from the mortgaged property) of the mortgagors. I would, therefore, allow this appeal with costs of all Courts and give to the appellant the decree that he applied for, under Order XXXIV, Rule 6, Civil Procedure Code. Varma, J.