PERUMAL AND ORS. Vs. K. JAYAMMAL AND ORS.

JUDGEMENT

(1.) THIS is a civil miscellaneous second appeal against the judgment of the District Judge of Chingleput allowing C.M.A. No. 23 of 1970 against the order of the District Munsif of Chingleput in execution petition No. 279 of 1969 in O.S. No. 328 of 1963. In order to appreciate the controversy between the parties it is necessary to state a few facts. The Chingleput Dhanasekara Nidhi Limited, instituted a suit, O.S. No. 328 of 1963 on the file of the District Munsif's Court, Chingleput in enforcement of a mortgage, granted by the first defendant in favour of the Nidhi. Defendants 2 to 7 were impleaded as subsequent purchasers of the hypotheca. The 8th defendant was impleaded as she had obtained a subsequent mortgage of the same property from the first defendant on 11th June, 1962. This mortgage, though subsequent to the mortgage granted in favour of the first defendant, was antecedent in point of time to the alienations in favour of the defendants 2 to 7. The 8th defendant, who is a woman, prayed in her written statement for a decree in her favour for the amount due under her mortgage. A preliminary decree was granted in favour of the plaintiff and that decree entitled the 8th defendant to work out her equities. Subsequently, as the 8th defendant was aggrieved with this decree, she filed I.A. No. 68 of 1963 under Section 152, Civil Procedure Code, for amendment of the decree by incorporating the following clause viz., " granting the usual mortgage decree on the mortgage deed in favour of the petitioner (D -8) similar to the one that was granted in favour of the plaintiff and enabling the petitioner to realise the amount due under her mortgage by sale of the hypothecated properties". Notice of this application was admittedly served upon the mortgagor and after hot contest, the Court overruled the objections raised by him and granted on 3rd March, 1965 an amendment of the decree as prayed for without costs. Unfortunately, a perusal of the revised decree shows that the amendment was not properly carried out. A final decree was passed on 24th April, 1967 providing that after the plaintiff's decree was fully satisfied, the 8th defendant would be entitled to realise the mortgage amount due to her from out of the surplus sale proceeds in the event of the hypotheca being sold. It appears that there was a settlement out of Court between the mortgagor and the earlier mortgagee, the plaintiff, with the result, the plaintiff entered full satisfaction of the decree on 7th May, 1969. Evidently, this step was taken behind the back of the 8th defendant to frustrate her claim. Subsequently, the 8th defendant filed E.P. No. 279 of 1969 praying for the sale of the hypotheca so that she might realise the amount due to her from the sale proceeds. The mortgagor and the subsequent alienees contended that the 8th defendant was not competent to execute the decree after satisfaction had been recorded of the decree in favour of the plaintiff. The District Munsif held that as the hypotheca had not been sold in execution of the decree in favour of the prior mortgagees and as the decree itself had been satisfied without a sale, it was not competent for the 8th defendant to execute the decree which stood discharged. Consequently, the learned District Munsif dismissed her execution petition and referred her to a separate suit on the puisne mortgage. The puisne mortgagee preferred an appeal to the District Court, Chingleput and the learned District Judge has allowed the appeal, and directed the District Munsif to restore the E.P. No. 279 of 1969 and proceed with execution. It is against this order, defendants 2, 4 to 7 have preferred this appeal.

(2.) I have little hesitation in agreeing with the learned District Judge and confirming his judgment. A number of technical objections have been raised by the appellants against the executability of the final decree. It is true that the final decree does not correctly incorporate the amendment directed by the Court in I.A. No. 68 of 1963. All that the revised decree says is that the money realised by 'such sale' shall be paid into Court and be duly applied, after deduction therefrom of the expenses of the sale, first in payment of the amount paid by the 8th defendant in respect of the plaintiff's mortgage and the costs of the suit in connection therewith and in payment of the amount, which the Court may adjudge due in respect of subsequent interest on the said amount. This clause in the decree seems to contemplate a case where the 8th defendant pays off the prior mortgage, in which case only she would be entitled to bring the hypotheca to sale. But the effect of the amendment ordered by the Court in I.A. No. 68 of 1963 was to grant the "usual" mortgage decree on foot of the mortgage deed in favour of the petitioner (D -8) similar to that which was granted in favour of the plaintiff and to enable the petitioner independently to realise the amount due under her mortgage by sale of the hypothecated properties. The executing Court should while construing the decree read it in conjunction with the order passed in I.A. No. 68 of 1963. It may be that by a clerical mistake committed by the office of the District Munsif the amendment directed by the Court was not carried out. But, the person who had obtained the relief, ought not to suffer for the mistakes of the office. In fact, in Chhaganlal Sakarial v. Jayaram Deoraj : I.L.R. (1927) 51 Bom. 125 the plaintiff who had obtained a preliminary decree asked for execution of the decree without getting a final decree. No formal final decree was drawn up at all in that case. A Division Bench of the Bombay High Court, considering the objection that technically there was no final decree which could be executed, observed as follows: " This contention has become possible, because of the laxity which prevails in the lower Courts in drawing up -decrees in mortgage suits. In the present case the preliminary decree was drawn up in the proper form provided by the Code of Civil Procedure. Under Rule 5 of Order 34, when such payment as is directed by the preliminary decree is not made, the Court shall, on application made in that behalf by the plaintiff, pass a decree that the mortgaged property, or a sufficient part thereof, be sold....The question that now arises is whether, at this distance of time, nearly fifteen years after the decree, and twelve years, after the order making the decree absolute was made, the execution can go on or not. Having regard to the terms of the preliminary decree which has been made absolute, we could only attribute the omission to have a final decree drawn up to a misapprehension on the part of the Court, as well as the parties concerned as to the necessity of having a final decree formally drawn up. The parties seem to have gone on all these years on the footing that the preliminary decree, which was made absolute, was the formal expression of the final decree under Rule 5 of Order 34.

(3.) I am of opinion that, though the final decree has not been formally drawn up on the terms of the preliminary decree, which has been made absolute, that decree coupled with the order, may be taken under the circumstances to be the final decree. In its ultimate analysis it is only a formal defect. It is conceivable that a formal defect of this nature may lead to a real difficulty in the way of execution and it is necessary to see that even such a formal defect does not creep in, and that a formal decree is drawn up when the decree is made final. But under the circumstances of this case, we are not prepared to hold that there is no executable decree. The result of allowing a contention of this nature at this distance of time, will be that a decree will have to be drawn up formally now and a fresh beginning will have to be made in the way of execution after the lapse of so many years. That is a result which should be avoided so far as it is legally possible to do so". In that case their Lordships relied upon Jawahar Mal v. Kistur Chand : I.L.R. (1891) All. 343, where there appears to have been an omission of this kind and it was held that such an omission may be condoned where the terms of the decree sought to be executed are otherwise ascertained or are clearly ascertainable, as they are in this case. Section 99 of the Code of Civil Procedure provides that "No decree shall be reversed or substantially varied, nor shall in any case be remanded, in appeal on account of any -misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court." The salutary principle embodied in Section 99, Civil Procedure Code, has been followed in both the cases cited supra Following these rulings I think it right that in spite of the omission of the office to carry out properly the amendment ordered by the trial Court, it was open to the executing Court to construe the provisions of the decree with reference not only to the irregularly drafted decree but also to the order passed by the Court in I.A. No. 68 of 1963.