John Francis Carlos v. Lakshmikutty Amma — 1949 DIGILAW 24 (KER)

JUDGMENT : S. GOVINDA MENON, J. 1. This appeal arises out of proceedings in execution of the decree in O.S. 197 of 1111 on the file of the District Judge of Anjikaimal. The appellant before us is the first judgment-debtor in the case. The respondents are the decree-holders. 2. The facts may be briefly stated. O.S. No. 197/1111 was filed by the respondents to recover possession of the properties mentioned in the schedule attached to the plaint in that case with arrears of and future pattom on foot of a lease back. On 10th Kanni 1099 those properties along with certain others had been usufructuarily mortgaged by defendants 1 to 4, viz. the appellant Francis Carlos (first defendant), his sister Ida Mary Carlos (second defendant), their minor brother Wilfred Carlos (3rd defendant), and their mother, Emily Carlos (4th defendant) in favour of the deceased mother of the plaintiffs for an amount of Rs. 6500. On even date the mortgagors took back the mortgaged properties on lease from the mortgagee on an annual pattom of Rs. 550 and executed in her favour a lease back. Some time later the mortgagors repaid a portion of the mortgage money and got some of the mortgaged properties released from all liability under the mortgage and lease back. The suit No. 197/1111 was filed by the heirs of the mortgagee-lessor the present respondents, on 27.12.1111 seeking to recover possession of the mortgaged properties then outstanding in the possession of the mortgagors as also to recover arrears of and future pattom due to them. The suit was ultimately decreed after contest on 7.5.1113 directing surrender of the suit properties to the plaintiffs by the defendants as also payment by them of an amount of Rs. 5625 on account of arrears of pattom inclusive of interest as well as the costs of the plaintiffs. The decree also directed a sale of the mortgaged properties subject to the liability under the usufructuary mortgage of 1099 for an amount of Rs. 4687-8-0. The decree-holders applied on 6.4.1114 by E.P. 189/1114 for delivery of possession to them of the mortgaged properties in execution. Delivery was ordered by court and they obtained actual delivery on 3.5.1114 (vide delivery receipt, Index No. 7). 4687-8-0. The decree-holders applied on 6.4.1114 by E.P. 189/1114 for delivery of possession to them of the mortgaged properties in execution. Delivery was ordered by court and they obtained actual delivery on 3.5.1114 (vide delivery receipt, Index No. 7). Ever since the respondents have been in possession of the mortgaged properties, after the passing of the Agriculturists’ Relief Act, XVIII/1114, at the instance of the first defendant the decree in O.S. No. 197/1111 was amended by court effecting a scaling down of the debt and it is the amended decree that is now being executed. The execution application giving rise to this appeal, namely, E.P. 186/21, was filed by the decree-holders on 1.8.1121 for the realisation of the scaled down decree debt due to them amounting to Rs. 3172-13-1 inclusive of costs by sale of the equity of redemption in the decree schedule properties. In that application it was alleged that the 4th judgment debtor Emily Carlos was dead and that her legal representatives were judgment-debtors 1 to 3. The first judgment-debtor (appellant before us) by his written objection filed on 2.12.1121 opposed that application. However judgment-debtors 2 and 3 did not raise any objection. The objections raised by the appellant are twofold, namely (1) that the 4th defendant Emily Carlos had died on 22.5.1935, i.e., long before the institution of the suit itself and, therefore, the decree passed therein is not binding on him or defendants 2 and 3 in their capacity as her legal heirs or on her estate and (2) that the decree-holders after they entered into possession have committed enormous waste in the mortgaged properties for which they are liable to pay damages estimated by him to amount to Rs. 7800 and that the damages payable by the decree-holders should be assessed and adjusted towards the decree-debt. The learned District Judge by his order dated 29.11.1123 declined to go into the second of the above two objections for the reason that the waste alleged to have been committed by the decree-holders could not be inquired into in execution. The other objection was also repelled by the learned Judge by his order dated 14th Karkitakom 1123 observing that it should have been raised in the suit itself. The present appeal has been preferred by the first judgment-debtor against these two orders. 3. The other objection was also repelled by the learned Judge by his order dated 14th Karkitakom 1123 observing that it should have been raised in the suit itself. The present appeal has been preferred by the first judgment-debtor against these two orders. 3. The grounds taken in the appellant’s memorandum of appeal cover both the objections raised by him to execution in the court below. However, the first ground of objection was not seriously pressed before us by the learned advocate for the appellant. That objection is to say the least frivolous and it was correctly overruled by the learned Judge of the court below. According to the appellant though his mother had died before the institution of the suit O.S. 197/1111, she was impleaded therein as the 4th defendant as if she were alive. The appellant though he contested the suit never cared to raise any objection to it on the ground that it had not been properly instituted, his mother, the 4th defendant being dead. A decree was passed in the suit as prayed for. The appellant, a party to that decree, is certainly not competent now to question its validity and binding nature. His contention that the decree is not binding on the estate of the deceased 4th defendant or on her legal representatives, as defendants 1 to 3 had not been impleaded in the suit as such is devoid of any substance. Even if the appellant’s mother had died before the institution of the suit, all her children, defendants 1 to 3, were parties to that suit and the decree in the case was passed in the presence of all her legal representatives and with them on record. Her estate was fully represented in that case. The decree, is therefore, completely binding on her estate and her legal representatives, viz., defendants 1 to 3. The appellant cannot, therefore be heard to raise any objection to execution on the ground that the decree is not binding on him or his mother’s estate. 4. Her estate was fully represented in that case. The decree, is therefore, completely binding on her estate and her legal representatives, viz., defendants 1 to 3. The appellant cannot, therefore be heard to raise any objection to execution on the ground that the decree is not binding on him or his mother’s estate. 4. As regards the second objection raised by the appellant to execution, the short question to be decided is whether the liability, if any, of the respondents who are mortgagees in possession to pay damages for waste alleged to have been committed by them upon the mortgaged properties is one that could be inquired into by the court executing the decree for arrears of rent as a matter falling under S. 41 of the Code of Civil Procedure. A mortgagee in possession, if he commits any act of waste as contemplated by S. 82, Cl. (c) of the Cochin Transfer of Property Act corresponding to S. 76, Cl. (e) of the Indian Transfer of Property Act, is undoubtedly liable to pay damages. The latter portion of S. 82 provides thus:- “If the mortgagee fail to perform any of the duties imposed upon him by this section, he may, when accounts are taken in pursuance of a decree made under this chapter, be debited with the loss, if any, occasioned by such failure.” “The remedy under this section is cumulative and does not operate as a ban to any other remedy the mortgagor may have at law. He may bring a suit of damages at once and need not wait to debit the mortgagee with the loss when accounts are taken at redemption”. (Vide Mulla’s Transfer of Property Act, Page 436 (1933 Edition)). The mortgagees’ liability to this behalf could be ascertained and fixed when an account is taken. An account is generally or usually taken at the time of redemption. It has been held in Gordhan Lal v. Thakkur Radha Kant, AIR 945 Mad, 179 that a mortgagor entitled to sue for redemption is not entitled to sue merely for accounts. Piecemeal accounting is not contemplated by law. However, the position canvassed for by Mr. An account is generally or usually taken at the time of redemption. It has been held in Gordhan Lal v. Thakkur Radha Kant, AIR 945 Mad, 179 that a mortgagor entitled to sue for redemption is not entitled to sue merely for accounts. Piecemeal accounting is not contemplated by law. However, the position canvassed for by Mr. Mahalinga Iyer, the learned Advocate for the appellant, is that in respect of waste committed after the passing of a decree for sale the question has to be inquired into in execution as a matter falling within the scope of S. 41 of the Code. In support of his contention he relies upon the decision of the Madras High Court in Ramanatha Ayyar v. Abdul Salam, AIR 943 All. 109. The headnote in that case runs as follows:- “The Court in executing a decree is entitled to go into such matters as waste committed whichever side has happened to be in possession since the date of the decree sought to be executed.” “In execution proceedings following a final decree for sale of the mortgaged properties the judgment-debtor pleaded that the decree-holder who was in possession of the property under the usufructuary mortgage had committed acts of waste after the decree was passed and that property should be sold only after allowance had been made for it which he estimated at Rs. 15000 and the court dismissed the application of the judgment-debtor referring him to a regular suit.” “Held that the question whether the decree-holder in possession had committed acts of waste after the decree was passed causing deterioration of the value of the property was a matter in execution and fell to be decided under S. 47 and the Court executing the decree was therefore entitled to go into it.” That decision has no applicability to the case in hand. In that case on the deposit by the mortgagor of the mortgage money payable by him as fixed in the final decree he would become entitled to be put back in possession of the mortgaged properties and thereby terminate the relationship of mortgagor and mortgagee. There was no scope, therefore, for any new suit in which a further accounting and adjustment of the damages payable towards the mortgage money could be claimed. There was no scope, therefore, for any new suit in which a further accounting and adjustment of the damages payable towards the mortgage money could be claimed. The question had, therefore, necessarily to be gone into in execution as a matter in dispute between the decree-holder and the judgment-debtor. However, in this case the situation is entirely different. The suit in O.S. No. 197/1111 is not one instituted by the mortgagees for sale of the mortgaged properties for the realisation of the mortgage money due to them. It is one filed by them in their capacity as lessors to recover possession of the properties leased as also for realisation of the pattam in arrears by sale of the equity of redemption over which a charge had been created. The decree is not one for sale as made under the provisions of Chapter V of the Transfer of Property Act like the final decree for sale made in the Madras case. Satisfaction of the decree debt in this case by the lessee defendants by deposit in court or otherwise will not entitle them to claim that they should be put in possession of the mortgaged properties by the mortgagees. To get back possession they must redeem the mortgage of 1099 either out of court or in a properly constituted suit for redemption. In such a suit they will be entitled to claim an accounding at the hands of the mortgagees and in taking an account their liability to pay compensation for waste, if any, committed by them will be an item to be gone into and decided. It is certainly open to the mortgagors to bring a suit for redemption and claim therein an accounting. The claim now put forward for assessment of compensation payable for waste committed till now by the mortgagees in possession really amounts to one for an interim account. No final and complete accounting could be had except in a suit for redemption. The present claim for damages for waste cannot be viewed as one relating to execution, discharge or satisfaction of the decree between the decree-holder and the judgment-debtors. No final and complete accounting could be had except in a suit for redemption. The present claim for damages for waste cannot be viewed as one relating to execution, discharge or satisfaction of the decree between the decree-holder and the judgment-debtors. In Gopalan Narayana Kaimal v. Ayyappa Kaima, 18 Cochin 297 a Full Bench of the Cochin High Court held that the liability of a judgment-debtor for damages to the decree-holder for waste committed on the property comprised in the decree causing deterioration in the value of such property is not enforceable in execution of the decree as a matter relating to the execution or satisfaction of the decree falling under S. 241 of the Code of Civil Procedure, Act 1 of 1079, which section corresponds to S. 41 of the Code now in force (Act XXIX/1111). In that case Krishna Menon, J. observed as follows:- “S. 241 C.P.C. provides that all matters arising between the parties to the suit or their representatives and relating to the execution, discharge or satisfaction of the decree shall be determined by order of the court executing the decree. Wide as is the interpretation which has been put upon the provisions of the section by judicial decisions I consider that they have to be confined to such matters as are covered by the decree and could be properly determined in execution by working out the provisions of the decree. Judged by by this test, we have to see whether the matter concerned here viz., the recovery of damages for the removal of the house ordered to be sold be the decree, is one relating to the execution of the decree. I think that it is not as the contingency of the removal of the house has not been anticipated and provided for in the decree.” Applying the test laid down by the learned Judge it is quite plain that the question of damages for waste now raised is not a matter covered by the decree. The decree under execution as already indicated is one obtained by a lessor against his lessee for arrears of pattom and not one obtained by the mortgagee for sale of the mortgaged properties. The decree under execution as already indicated is one obtained by a lessor against his lessee for arrears of pattom and not one obtained by the mortgagee for sale of the mortgaged properties. The fact that the mortgaged properties have been subjected to a charge for the arrears and there is a decree for sale will not render the decree one obtained by a mortgagee for sale for realisation of the mortgage money due to him. In our opinion the present dispute between the parties in their capacity as mortgagees in possession and mortgagors is one that should be agitated and decided in other appropriate proceedings, and not in execution of the decree obtained by the lessor mortgagee against his lessee mortgagors for arrears of rent. The decision of the High Court of Travancore in Venkita Rao v. Ramachandra Kammat, 1945 TL.R 973 fully supports this view. In that case the learned Judges held:- “When once a decree has been passed as the final decree in the case, it is not open to the parties to develop fresh actions and proceedings as it were in execution on causes of action which have arisen, if at all, subsequent to the decree. Claims arising subsequent to the date of the decree will have to be agitated and appropriate remedies obtained, in independent proceedings. Execution court is not competent to direct an enquiry into damages for waste alleged to have been committed subsequent to the decree.” 5. This appeal is, therefore, devoid of any substance and will stand dismissed with costs. Appeal dismissed.