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2011 DIGILAW 4656 (MAD)

First v. Second

2011-11-29

VINOD K.SHARMA

body2011
Judgment : VINOD K. SHARMA, J 1. This application has been moved by the applicant, to set aside the order passed by the learned Master in rejecting the application filed by the applicant, under Section 47 of Code of Civil Procedure in questioning the executability of the decree passed in Civil Suit No.646 of 1997. 2. The decree passed by the Court and the schedule of property, reads as under: "1 That the plaintiff herein, is entitled to equitable mortgage by depositing title deeds of the property morefully set out in the schedule hereunder. 2 That there is now due to the plaintiff on the aforesaid mortgage of the property set out in the schedule hereto the sum of Rs.10,10,000/- (Rupees Ten lakhs and ten thousand only) for principal and the sum of Rs.35,22,366.67 (Rupees Thirty five lakhs twenty two thousand three hundred and sixty six and paise sixty seven only) for interest, and that, on the 6th day of February, 2007, there will be due the further sum of Rs.60,600/-(Rupees sixty thousand six hundred only) for interest at the said rate of Rupees 24% percent per annum on the principal sum of Rs.10,10,000/- (Rupees Ten lakhs and ten thousand only) making in all the sum of Rs.45,92,966.67 (Rupees forty five lakhs ninety two thousand nine hundred and sixty six and paise sixty seven) 3 That the plaintiff is entitled to his costs of this suit when taxed and noticed in the margin hereof. And it is ordered and decreed as follows: 4 That the defendant shall be at liberty on or before the said 6th day of February,2007, to pay into Court the said sum of Rs.45,92,966.67 (Rupees forty five lakhs ninety two thousand nine hundred and sixty six only and paise sixty seven) and the said taxed costs of the plaintiff of this suit as taxed by the Taxing Officer and noticed in the margin hereof as aforesaid. 5 That on payment as aforesaid, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property set out in the Schedule hereto and also acknowledgment signed by them the amounts due to them and all claims to and interest in the mortgaged property of themselves and all the personal claims under them and under who they claim having been extinguished and thereupon the plaintiff shall be at liberty to apply for payment out of the said sums. 6 That, in default of payment in as aforesaid, the mortgaged property morefully set out in the schedule hereunder or a sufficient part thereof be sold and the sale-proceeds shall be paid into court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the said sums due to the plaintiff as aforesaid together with subsequent interest at the rate of 24% percent per annum and such further costs as may be allowed to the plaintiff by the court, and the balance, if any, shall be paid to the defendants or other persons entitled to receive the same; 7 that in case the said net sale-proceeds shall not be sufficient for payment in full of the amounts payable to the plaintiff as aforesaid, the plaintiff shall be at liberty to apply for a personal decree against the defendants for the amount of the balance due to the plaintiff; with interest at the rate of 24% p.a. till the date of realisation. 8 That the further consideration of this suit do stand adjourned.” SCHEDULE House and land, together with all structures as well as fittings & fixtures, bearing Municipal Door No.3, Govardhal Singh Street, Royapettah, Chennai-600 014, comprised in Plot No.3 and collectors certificate No.3081, forming part of Old Survey Nos.3045 and 3046and Re-survey No.133, Mylapore Division, situate within the Joint Sub-Registration District of Joint Sub Registrar I, Madras Central, and Registration District of Madras Central; the land measuring 135 ½ feet on the North, 131 ½ feet on the South, 27 feet on the West and 28 feet on the East, covering a total area of 3,680 square feet; Bounded on the North by Door No.2, Govardhan Singh Street, on the South by Door No.4, Govardhan Singh Street, on the west by Govardhan Singh Street, and on the East by land and huts belonging to Dorairaj Muniammal and others. 3. In the execution petition filed by the non-applicant, the learned Master proceeded to attach the property, for sale to recover the decreetal amount, as the applicant/judgment debtor failed to discharge the decreetal amount within the period stipulated in the decree. 4. The Judgment Debtor objected to attachment and sale of the property on the ground that the decree passed in favour of the applicant was merely a preliminary decree which could not be executed, unless application was made to the Court for execution of the decree by sale of mortgaged property. Learned Master, rejected the contention raised by the learned counsel for the judgment debtor. 5. Learned counsel for the applicant, challenged the order of the learned Master, by contending that the impugned order is outcome of misleading of the provisions of the Original Side Rules, in recording that no fresh application was required to be moved for sale of property, in view of the decree, which permitted the recovery by sale of the property shown in the schedule. 6. The learned counsel, placed reliance upon Order XXXVII Rule 8 to contend, that in the event of default in payment, then the decree holder was required to file application for sale the mortgaged property. The reliance was also placed on in Form No.91 of the Original Side Rules of the High Court, Madras, 1956. The relevant part of which reads thus:- "(2)If default is made in payment of the said sums of Rs. and Rs. The reliance was also placed on in Form No.91 of the Original Side Rules of the High Court, Madras, 1956. The relevant part of which reads thus:- "(2)If default is made in payment of the said sums of Rs. and Rs. (insert amounts due to the first mortgage), the first defendant shall be at liberty to apply for the sale of the mortgaged property: but if such payment is made, the first defendant shall bring into Court all documents in his possession or power relating to the mortgaged premises in the plaint mentioned, and also acknowledgment signed by him of the receipt of the said sums and that all interest in the premises created by the said mortgage has been extinguished, and thereupon he shall be a liberty to apply for payment out to him of the said sums (if the mortgagee is in possession) and shall put the plaintiffs or the first defendant who made the payment into possession of the said property.” 7. It is also the contention, of the learned counsel for the applicant that as per Form No.112 of the Original Side Rules, it is clear, that an order of sale has to be separately passed on failure to make the payment. 8. This application is opposed by the learned counsel for the non-applicant, by contending that the learned counsel for applicant has based his arguments on the provisions under Order XXXIV Rule 4 and 5 of C.P.C, which stipulates, passing preliminary and final decree. However, the rules of C.P.C. do not apply, to the Original Side Rules. 9. The contention of the learned counsel for the non-applicant is, that this Court can pass a final decree, as has been done in this case. In this case decree was passed under Order 37 Rule 4, in Form No.95 which reads as under: Form No.95 ORDER XXXVII RULE 8 – DECREE IN SUIT FOR SALE (CAUSE TITLE) It is declared that there is now due on the said mortgage the sum of Rs. X for principal and the sum of Rs. Y for interest, and that, on the day of there will be due the further sum of Rs. Z for interest at the said rate making in all the sum of Rs.X Y and Z. And it is further declared that the defendant is personally liable for the said amount. X for principal and the sum of Rs. Y for interest, and that, on the day of there will be due the further sum of Rs. Z for interest at the said rate making in all the sum of Rs.X Y and Z. And it is further declared that the defendant is personally liable for the said amount. And it is ordered as follows: “1. The defendant shall be at liberty on or before the said day of to pay into Court the said sum of Rs.()X,Y and Z) and the further sum of Rs. For the costs of this suit. 2. On payment as aforesaid the plaintiff shall bring into Court (Continue as in para-2 of Form No.91) 3. In default of payment in as aforesaid, said premises, or a sufficient part thereof shall be sold, and the net sale proceeds shall be paid into Court and applied in payment of the said sums, together with such subsequent interests and costs as may be allowed by the Court, and the balance, if any, shall be paid to the defendant." 10. On consideration, I find force in the contention raised by the learned counsel for the non-applicant, the decree passed by this Court is in Form No.95, therefore, the learned Master has rightly come to the conclusion that there was no necessity for any subsequent application. 11. It is within the jurisdiction of the learned Master, on the failure of the judgment debtor to pay the decreetal amount in terms of decree passed, by this Court, to proceed with the sale. 12. The Form No.91 on which reliance was placed by the learned counsel for the applicant, is misconceived as applies to the decree, in a suit by the second mortgagee against the first mortgagee and mortgagers, and not in case of suit for sale. 13. The order passed by the learned Master is in consonance with law which calls for no interference by this Court. No merits. Dismissed.