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TMI Blog1952 (8) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... afterwards became defendant 4 in this suit Murlidhar Shrinivas, who was an infant, the relief in his suit including a claim that the plaintiffs' mortgage was not binding on him. I will refer to that suit as defendant 4's suit. On 25th August an order was made in the present suit appointing one of the plaintiffs receiver and manager of the press. The order included a provision that the receiver was not to act as long as the defendants paid interest and installments of principal: as therein provided. I may point out in passing that the order seems to have been wrong in appointing a manager, her cause the plaintiffs' pledge did not include the business of the press, it only included certain assets of that business, and there was I think no case for the appointment of a manager. On 9th September the Court Receiver was appointed receiver of the press in defendant 4'a suit, that order being made by consent. On the same day defendants 2 and 3 in the present suit1 were adjudicated insolvent. Shortly after that, the plaint in this suit was amended by the leave of the Court, and defendants 2, 3, 4 and 6 were added, and also the Official Assignee, defendant 5, as claiming thro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um of ₹ 11,497 odd declared to be due to the plaintiffs should in fact have been a greater sum. At first sight it is difficult to see why it is to the appellant's interest that the plaintiffs should have a greater sum found due to them than the sum they admit to be due but the contention of the appellant, representing the unsecured creditors of defendants 2 and 3, is that in fact these sums of ₹ 1,500 per month have been paid out of properties not subject to the plaintiffs' charge, and that they have really benefited the second incumbrancer, namely, defendant 6, and that in the result the unsecured creditors have lost by those payments. Therefore the appellant claims that the plaintiffs should be ordered to, repay a part at any rate of these payments, and that although thereby their debt will increase, still they can only prove for any balance which may remain after realising their security. To my mind that claim is wholly untenable. The plaintiff's were paid these sums of ₹ 1,500 per month because they had a charge upon the machinery and assets which were being used by the receiver in defendant 4's suit to carry on the business, and if the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im then asks that his security against the press may be enforced. 7. Now the first point taken against defendant 6 by the appellant is that, having regard to the fact that he obtained a personal judgment for the amount of his debt, he cannot sue to enforce his security, having regard to Order 2, Rule 2, Civil P.C. So far as material that order provides that very suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, and then in Sub-Rule (1884) 9 A.C. 365 it is provided that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted; and then the explanation provides that for the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute one cause of action. Having regard to that explanation it is, I think, clear that, (if the rule applies at all), defendant 6, having obtained a personal judgment for his de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in Rule 14 against bringing the mortgaged property to sale otherwise than in a suit for sale in enforcement of the mortgage should not apply as much to a mortgagee of moveable property as to a mortgagee of immovable property. But in construing this rule we must have regard to the context in which it, appears, and I think also to its historical origin. Order 34 was incorporated in the Civil P.C. in 1908, and the provisions of the order were taken from the Transfer, of Property Act. Rule 14 was Section 99, T.P. Act, and that section appears in C.H. 4, of the Act which is headed "Of Mortgages of Immovable Property and Charges" "Charge" is defined in Section 100 of the Act and applies only to charges of immovable property. So that Order 34, was substituted for sections in the Transfer of Property Act which dealt, only with mortgages of immovable property, and I think a presumption arises that in taking these provisions out of an Act relating to property and incorporating them in an Act relating to procedure the legislature did not intend to extend the scope of the provisions, although, no doubt, that presumption would be rebutted if the legislature had used lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endants is in my opinion entitled in the plaintiffs' suit to prove his mortgage, and, having proved his mortgage, I think that the Court is bound to decree to defendant 6 the first right to redeem the plaintiffs' mortgage. I think further that if the property is sold in the plaintiffs' suit, and the proceeds are brought into Court, and those proceeds are more than sufficient to pay the plaintiffs what is due to them, then the balance will have to be paid to defendant 6 as the person having a first charge on the equity of redemption, to the extent, of course, of his charge, and I think the order must so provide. The English cases cited by Mr. Coltman, and particularly the case of Lloyd In re, Lloyd v. Lloyd (1903) 1 Ch. 385, support that view. But has he any further right? Mr. Coltman says' that if Order 34, does not apply, then there are no rules as to the methods of enforcing a mortgage personal property or as to the parties who should be brought before the Court, and that being so, he says we should follow the English practice in similar cases. Undoubtedly the English practice, where there are several mortgages, is to work out the rights of the parties by one orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e terms of Form 9 in Appx. D, Civil P.C., but I think that form goes too far in a case such as this. 13. In particular I think that a defendant whose right to enforce his mortgage, is barred Under Order 2, Rule 2, is not entitled to insist on provision 5 (a) in that form, namely, that if the defendant-mortgagee pays into Court to the credit of this suit the amount adjudged due to the plaintiff but defendant 1 (the mortgagor) makes default in the payment of the said amount, defendant-mortgagee shall be at, liberty to apply to the Court to keep the plaintiff's mortgage alive for his benefit and to apply for a final decree. In view of Order 2, Rule 2, we cannot say that defendant 6 is entitled to apply for a final decree. As regards costs, defendant 6 shall pay half of the costs of the appellant and there will be no order as regards the costs of the other half. Blackwell, J. 14. It has been contended by the appellant, the Official Assignee of the estate and effects of defendants 2 and 3, that the learned trial Judge was wrong in allowing the plaintiffs to get credit for certain interim payments that were made by the receiver in another suit out of the unsecured assets of the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e paralysed the working of I the press. In my opinion the words "without prejudice to the rights and contentions of the parties," whatever they may mean, cannot mean that the appellant was to be at liberty to challenge the payments made under those orders at a later date. The appellant did not appeal against the order of 11th November 1930, and, in my opinion, he is bound by it. 16. It is next to be observed that the appellant consented to an order dated 12th February 1931, under which the payments by the receiver were continued upon the terms of the order of 11th November 1930, with certain immaterial variations. In my opinion the appellant is precluded by those orders from challenging now the payments which were ordered to be made and were made by the receiver in the other suit. In any event I fail to see how the appellant can seek in this suit to compel the plaintiffs to abandon the amounts paid to them by a receiver Under Orders of the Court for which they have given credit and to ask in this suit for a decree for a larger amount than ₹ 11,497 odd which they say is due to them. Accordingly, in my opinion, this contention of the appellant fails. On the other han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be inserted in. the Civil Procedure Code. The learned1 Chief Justice in his judgment has set out the history and I need not again refer to it. In Maxwell on the Interpretation of Statutes, 7th Edn., at p. 44, the question what effect is to be given to headings a statute is dealt with as follows: The headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections, and a number of authorities are cited in support of that proposition. Then at p. 37 it is stated: The preamble of a statute has been said to be a good means of finding out its meaning, and, as it were, a key to the understanding of it and, as it usually states, or professes to state, the general object and intention of the legislature in passing the enactment, it may legitimately be consulted to solve any ambiguity, or to fix the meaning of words which may have more than one, or to keep the effect of the Act within, its real scope, whenever the enacting part is in any of these respects open to doubt. Then at p. 39 it is said: But the preamble cannot either restrict or extend the enacting part, when the language and the object and scope of the Act are not open to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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