1932 (3) TMI 19 - HC - Indian Laws

Summary

Issues Involved:
1. Jurisdiction to make a personal decree under Order 34, Rule 6, Civil Procedure Code (CPC).
2. Liability of defendants other than the original lessee for the plaintiff's dues.
3. Interpretation and enforcement of the settlement (kabuliyat) and mortgage agreements.
4. Validity and scope of the decree passed on the basis of the solenama (compromise).
5. Possession and liability of the mortgagees.

Issue-wise Detailed Analysis:

1. Jurisdiction to make a personal decree under Order 34, Rule 6, CPC:
The plaintiff applied for a personal decree against all defendants under Order 34, Rule 6, CPC, for the remaining dues after the sale of the charged properties. The court examined whether such a decree could be made at the stage when the application was filed. It was emphasized that a decree under Order 34, Rule 6, can only be passed after it is ascertained that the net proceeds of the sale of mortgaged properties are insufficient to pay the amount of the decree. The court referred to the decision in Lakhi Narain v. Kirtibas Das, affirming that the procedure prescribed does not contemplate such a decree at the stage when the application was made.

2. Liability of defendants other than the original lessee for the plaintiff's dues:
The court analyzed the liability of defendants other than the original lessee (defendant 1) for the plaintiff's dues. It was argued that the decree against these defendants was merely a decree for sale and not a personal decree. The court found that the other defendants were made parties as puisne encumbrancers and not on the ground of any liability for the mortgage debt or possession. It was concluded that a personal decree against a puisne encumbrancer is out of the question unless there is privity of estate or contract.

3. Interpretation and enforcement of the settlement (kabuliyat) and mortgage agreements:
The court examined the terms of the kabuliyat executed by defendant 1, which created a first charge on the leasehold lands and other properties for the royalty dues. The court also reviewed the mortgage agreements executed by defendant 1 in favor of the other defendants. It was noted that the mortgagor covenanted to pay the royalties, and the mortgagees were not liable for the royalties merely by reason of being English mortgagees. The court referred to the decision in The Bengal National Bank v. Janaki Nath Roy, which held that an English mortgage in India does not transfer the entire estate of the mortgagor to the mortgagee.

4. Validity and scope of the decree passed on the basis of the solenama (compromise):
The decree passed on the basis of the solenama was analyzed to determine if it included a personal decree against the other defendants. The court found that the decree was a combined decree under Rules 5 and 6 against defendant 1, embodying all the terms of the solenama. As against the other defendants, the decree aimed to provide the plaintiff with the reliefs necessary to sell the properties free from encumbrances. The court concluded that there was no room for any further decree against the other defendants under Rule 6.

5. Possession and liability of the mortgagees:
The court addressed the issue of whether the mortgagees (defendants 2 to 5) were in possession of the colliery and liable for the royalties. It was found that the mortgagees were not in possession, and the evidence did not support the claim that they were. The court noted that the statements in the plaint, an affidavit of the plaintiff's agent, and other documentary evidence negated the position that the mortgagees were in possession. The court concluded that the mortgagees were not liable for the royalties due under the lease.

Conclusion:
The court allowed the appeals and set aside the decree against the defendants other than defendant 1. It was held that the proceedings leading to the decree were misconceived, and the decree itself could not stand. The appellants were entitled to their costs, and any security deposited by them was to be returned.