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Judgment
Seshagiri Aiyar, J.—In order to appreciate the contention raised by the learned vakils in this case, it is necessary to state that a suit was
brought in the Court of the Subordinate Judge of Tinnevelly by the second mortgagees against the mortgagor, the 1st defendant, and the first
mortgagees, the second and third defendants. On appeal to the High Court from the judgment of the Subordinate Judge a decree was passed by
which the puisne mortgagees as well as the first mortgagees were declared entitled to apply for the sale of the mortgaged properties. An order
absolute was passed by the Subordinate Judge; after that, as the major portion of the properties mortgaged was in the Madura District, the decree
was transferred for execution to that District. The present application was made by the transferee of the rights of the first mortgagees for a personal
decree. The District Judge passed an order in his favour. In appeal Mr. Rangachariar has taken three objections to the order. In the first place he
contends that as the first mortgagees were not the plaintiffs in the suit, their transferees are not entitled to obtain a personal decree in his favour. He
relied upon the language of Order 34, Rule 6 which says that the plaintiff may apply to the Court for passing a personal decree. The form given in
the CPC is also in favour of his contention, but in the present case, a decree was passed in favour of the second mortgagees as well as of the first
mortgagees. The High Court intended that both of them should have equal rights for applying for the other reliefs consequent upon the mortgage
decree Mr. Rangachariar referred us to Rule 12 of Order 34. The decree passed in this case does not conform to that provision. It seems to me
that the intention of the Court which passed the decree was to treat both the mortgagees as plaintiffs and to enable them to obtain all the further
reliefs in that capacity. Therefore I am unable to agree with Mr. Rangachariar in his first contention. I may also say that the decision in Govinda
Taragan v. Veeran ILR (1911) M. 32 to which Mr. Krishnaswami Ayar drew our attention supports the view I have taken in this case. Therefore I
overrule the first contention.
On the second point, namely, that an application for a personal decree should have been made to the Subordinate Judge of Tinnevelly and not
to the Madura Court, I agree with the learned vakil''s contention. Mr. Krishnaswami Aiyar laid considerable stress upon the fact that in this Court
beginning with Mallikarjunadu Setti v. Lingamurthi Pantulu ILR (1902) M. 244 the uniform course of decisions has been to regard applications of a
personal decree as applications in execution. In a very recent decision reported in Hussain v. Karim ILR (1915) M. 544 Mr. Justice
Kumaraswami Sastriar and myself followed the view taken in Mallikarjunadu Setti v. Lingamurthi Pantulu ILR (1902) M. 244. But in my opinion
this question is not concluded by what was decided either in Mallikarjunadu Setti v. Lingamurthi Pantulu ILR (1902) M. 244 or in Hussain v.
Karim ILR (1915) M. 544. The decree which was sent to the Madura Court was a decree for the sale of the mortgaged property and it is a well
established rule of law that an executing Court has no power to vary a decree. It follows from this that the Madura Court has no power to pass a
decree against properties other than those which have been mortgaged. The wording of Section 39, Clause C and of Rules 6 to 9 of Order 21
shows that the executing Court is to have admitted jurisdiction in regard to the matter which is transmitted to it. The decision in Sreekrishen Doss v.
Alumbi Ammal ILR (1911) M. 108 : 21 M.L.J. 777 also shows that except upon the particular questions transmitted for execution, the original
Court retains full jurisdiction to deal with the subject-matter of the suit in all its stages. Reference may also be made to the decision in Swaminatha
Aiyar v. Vaidyantha Sastri ILR (1905) M. 466. Mr. Krishnaswami Aiyar quoted an obiter dictum of Justice Bhashyam Iyengar in Mallikarjunadu
Setti v. Lingamurthi Pantulu ILR (1902) M. 244 to the effect that an application for a personal decree should be made to the Court which executes
the decree. I have the highest respect for the learned Judge but I am unable to accept his view that where a decree for the sale of Immovable
property has been transmitted to the executing Court, that Court will have power to pass a personal decree.
Upon the third question whether a succession certificate is necessary, it is enough to say that the 2nd defendant and his sons seem to have been
members of a joint Hindu family. In the view taken by the learned District Judge the question as to whether a succession certificate was necessary
if they were members of a joint family did not arise for consideration. When application is made once again to the proper Court the question
whether a succession certificate is necessary and whether the legal representatives claim by succession or by survivorship may have to be
considered by that Court. In the view I have taken upon the second question the order of the learned District Judge must be reversed, and he
should be directed to send the application for prosecution to the proper Court. The appellant is entitled to his costs in this Court. Costs in the
lower Court will be provided for in the revised decree.
Bakewell, J.
The proper decree to be passed in the suit is given in Appendix D, Form 8 which contains the provision that if the net proceeds of the sale are
insufficient, the plaintiff shall be at liberty to apply for a personal decree. This provision amounts to an express reservation of the power of the
Court to determine the extent of the personal liability of the mortgagors; but the omission of the provision does not, I think, preclude the Court
from considering the question in the exercise of the power expressly conferred upon it by Rule 6 of Order 34. ""What therefore has been
transferred for execution is merely the decree in the suit for the sale of the property and it is a well-settled principle that the executing Court cannot
vary or import any provision into the decree what has been transferred to it for execution. In my opinion, the power of passing a supplementary
decree in the suit after judicial determination of the question of the liability of the mortgagor must be in the Court in which the mortgage suit was
originally instituted. The question of personal liability and the necessity of a succession certificate will have to be determined by that Court, but I
may point out that the preliminary decree for sale is in favour of both the 2nd mortgagees as well as the first mortgagees, one period of redemption
only being given. The first mortgagee would ordinarily be entitled to a decree that he should be redeemed by the second mortgagee and upon the
failure of the latter to redeem, he would be entitled to ask that the suit should be dismissed or that an order should be passed for the sale of the
property. It cannot be doubted that such an order would constitute him a decree-holder in the suit. I do not think that it can be deemed from the
proceedings in the case that the Court intended by the form of the decree to vary any of the remedies of the first mortgagees. I agree that the first
mortgagees in this cage should be treated as the plaintiffs in the suit within the meaning of Order 34, Rule 6 of the Code of Civil Procedure.