Back
1954 Supreme(Ker) 9
Judges : KUMARA PILLAI
Alexander - Appellant
Versus
Kochu Chanda Pillai - Respondent
Case No : S. A. No. 7 of 1124
Decided On : 01/18/1954
Advocates Appeared :
K. T. Thomas; K. M. Joseph; For Appellant M. Abraham; For 2nd Respondent K. T. Ninan; For 9th Respondent
One debt creates a single indivisible liability, and there is only one cause of action on the mortgage document. The mortgagor should not be harassed more than once for the mortgage debt.
Headnote:
Mortgage - Recovery of Mortgage Money - Severance of Interest
Fact of the Case:
The plaintiff filed a second suit for recovery of a part of the mortgage amount after being a defendant in a previous suit for the same. The court held that the suit was not maintainable as the severance of interest between the mortgagees was not with the consent of the mortgagor.
Finding of the Court:
The court found that the suit was not maintainable as one debt creates a single indivisible liability, and there is only one cause of action on the mortgage document. Multiplicity of suits in respect of the one cause of action against the mortgagor cannot be allowed.
Issues: The main issue was the maintainability of the second suit for recovery of mortgage money.
Ratio Decidendi: The court applied the principle that one debt creates a single indivisible liability and that there is only one cause of action on the mortgage document. It also emphasized that the mortgagor should not be harassed more than once for the mortgage debt.
Final Decision: The second appeal was dismissed as groundless, and only one set of costs was allowed to the respondents who appeared in court.
1. The Courts below were perfectly right in holding that the suit is not maintainable as it is a second suit for recovery of mortgage money. For recovery of a part of the mortgage amount, Ext. I suit was filed and the present plaintiff was one of the defendants in that suit. He did not get himself transposed as a co-plaintiff in that suit or ask for a settlement of all accounts and payment of the portion of the mortgage amount due to him. It has been held in Kunjan v. Narayanan Nair (18 TLJ 12) that where the severance of interest between the mortgagees has been effected without the consent, expressed or implied, of the mortgagor, the remedy of one of the mortgagees is to sue for the whole of the mortgage amount with the consent of the co-mortgagee, and that if such consent cannot be obtained, his remedy is to add in that suit the co-mortgagee as a defendant and to seek for the proper mortgage decree which would provide for all the accounts and payments. There is absolutely no suggestion in this case that the severance of the interest between the plaintiff in Ext. I suit and the assignor of the present plaintiff was effected with the consent of the mortgagor expressed or implied. The decision relied upon by the respondent's counsel, viz., ILR 39 Madras 17 and AIR 1941 Lahore 337 are not applicable to the facts of this case. The severance of interest was not effected in this case with the consent of the mortgagor or by decree of court.
2. In these circumstance it has to be held that one debt creates but one single indivisible liability and that there is only one single cause of action on the mortgage document. The mortgagor ought not to be harassed more than once for the mortgage debt and multiplicity of suits in respect of the one cause of action against him cannot be allowed. The second appeal is therefore dismissed as groundless. Only one set of costs is allowed to the respondents who have appeared in this court. They will share the same equally.
Dismissed.
