JUDGMENT

Mackney, J - In Civil Suit No. 17 of 1932 of the Sub-divisional Court of Toungoo the present respondent, N.N. Chettyar Firm sued Maung Tun, his second wife, Ma Kyin Myaing, and his three children by his first wife, Maung Ko, Ma Khin Mya and Ma Ah Ma, for recovery of a certain sum of money due on a mortgage deed, which had been executed by Maung Tun for himself and by Maung Tun as guardian of the three children, who were minor at the time. Ma Kyin Myaing was an attesting witness. The Sub-divisional Court held that the deed had been executed for the benefit of the children and was binding on them. It granted a preliminary mortgage decree to the plaintiff as prayed. This decree was not appealed against, and the plaintiff ultimately obtained a final decree for sale on 3rd March 1933. The property was sold at a public auction for Rs. 1,000, to the decree-holder on 27th May 1933. The decree holder then applied to the Court for a personal decree against all the defendants. The Sub-divisional Court declined to give a personal decree against the women defendants, but granted a personal decree against Maung Tun and Maung Ko. Against this decree Maung Ko appealed to the District Court of Toungoo on the ground that, as he was a minor at the time of the execution of the mortgage, he could not be held to be personally liable for the debt, and, further, that the application for passing a personal decree against him was time-barred. The District Court found that at the time the mortgage suit was brought in June 1932, Maung Ko was a major, and therefore that the decree was binding upon him and its validity could not now be questioned.

2. As regards the question of limitation the District Court referred the case back to the Sub-divisional Court for a finding after hearing evidence. On the return of the proceedings, the District Court held that payment of interest on the mortgage debt by Maung Tun had been proved to have been made in July 1928, and therefore that the plaintiff was not barred by limitation from obtaining a personal decree even against Maung Ko. Against this decision Maung Ko now appeals to this Court. The Sub-divisional Court at the original trial did not come to any finding as to the personal liability of Maung Ko for the debt for which the mortgage bond was executed. Its finding merely amounted to a decision that the property of Maung Ko was subject to the mortgage. As has been pointed out in Sahu Radha Krishna v. Tej Saroop 1930 All. 69, the proper stage for deciding personal liability in respect of a debt secured by a mortgage is after the net proceeds of the sale have been found to be insufficient to pay the decretal amount. So long as it has not been ascertained that the sale proceeds are insufficient, no question for the passing of a personal decree arises. The occasion for applying for a personal decree arises when the proceeds are found to be insufficient; it is then that a personal decree can be passed. It is clear therefore that Maung Ko's personal liability was not determined until the Sub-divisional Court passed its order on the application of the plaintiff for a personal decree. Now, I think that it is clearly established that a guardian cannot bind an infant ward by a personal covenant: see Weghela Rajsanji v. Mosludin (1887) 11 Bom. 551, where their Lordships of the Privy Council observed:

Their Lordships are not aware of any law in which the guardian has such a power, nor do they see why it should be so in India. They conceive that it would be a very improper thing to allow the guardian to make covenants in the name of his ward, so as to impose a personal liability upon the ward, and they hold that in this case the guardian exceeded her powers so far as she purported to bind her ward. * * *

3. This was a case where a guardian had conveyed certain family land to a purchaser and the purchaser had taken a covenant from the guardian to indemnify him in case the Government should enforce its claim to receive rent