Q. What are the equivalent citations for Suri Markandeya Sastri vs U Gottumukkala Subhanadhra Charyulu and Others ?

The equivalence citation are42 IND. CAS. 288 ; AIR 1918 MAD 530 ; LQ/MadHC/1917/171 ;

Suri Markandeya Sastri Vs. U Gottumukkala Subhanadhra Charyulu And Others On 24 July, 1917

Q: Q. What was the bench assigned for the case Suri Markandeya Sastri vs U Gottumukkala Subhanadhra Charyulu and Others?

HONBLE MR. JUSTICE SPENCER , HONBLE MR. JUSTICE SESHAGIRI AIYAR

Open iDraf

Suri Markandeya Sastri v. U Gottumukkala Subhanadhra Charyulu And Others

Suri Markandeya Sastri
v.
U Gottumukkala Subhanadhra Charyulu And Others

(High Court Of Judicature At Madras)

Second Appeal No. 369 Of 1916 | 24-07-1917

[1] We cannot agree with the Subordinate Judge in his opinion that the mortgage deed in this case contains no personal covenant to pay. The words "we shall discharge the debt" make this a stronger case than that of Abbakke Heggadthi v. Kinhiamma Shetty 29 M. 49

1. where it was held that the personal liability of the mortgagor would ordinarily exist in the absence of a specific contract to the contrary.

[2] The Subordinate Judge would have been on safer ground if he had based his refusal on the second ground mentioned in his judgment, namely, that the decree-holder was entitled to proceed against the person of the defendants under Order XXXIV, rule 6, only after the proceeds of the sale of the mortgaged property proved to be insufficient to pay the amount due (Order XXXIV, rule 6, Civil Procedure Code).

[3] But the District Munsif s decree did not conform to the form for mortgage decrees printed in Appendix D, inasmuch as it did not expressly reserve this right, and the Subordinate Judge, having recognised that according to that form the right should have been reserved, should have provided accordingly in his decree,

[4] We must reverse the decree of the lower Appellate Court and direct the addition of Clause 3 of form 4 of Appendix D to be made to the decree of the Court of first instance.

[5] Appellant will get his costs of the appeal in this Court. In the lower Appellate Court each party will bear his own costs.

Advocates List

For the Appellant P. Nagabhushanam, Advocate. For the Respondents T. Prakasam, Advocate.

Bench List

HON'BLE MR. JUSTICE SPENCER

HON'BLE MR. JUSTICE SESHAGIRI AIYAR

Eq Citation

42 IND. CAS. 288

AIR 1918 MAD 530

LQ/MadHC/1917/171

HeadNote

Civil Procedure Code, 1908 — Or. XXXIV r. 6 — Mortgage decree — Words “we shall discharge the debt” — Held, made this a stronger case than Abbakke Heggadthi v. Kinhiamma Shetty, 29 M 491 — Subordinate Judge erred in holding that mortgage deed contained no personal covenant to pay — Subordinate Judge would have been on safer ground if he had based his refusal on ground that decree-holder was entitled to proceed against person of mortgagor only after proceeds of sale of mortgaged property proved to be insufficient to pay amount due — But Munsif's decree did not conform to form for mortgage decrees printed in Appendix D, inasmuch as it did not expressly reserve this right, and Subordinate Judge, having recognised that according to that form the right should have been reserved, should have provided accordingly in his decree — Addition of Cl. 3 of form 4 of Appendix D to be made to decree of Court of first instance — Costs