Koorjee v Butta (Civil Case No. 175 of 1940) [1940] EACA 45 (1 January 1940)

## ORIGINAL CIVIL

### Before HAYDEN, J.

# GULAMALI KOORJEE, Plaintiff $\mathbf{v}$

# NOOR FATUMA W/O MOHAMED DIN BUTTA, Defendant Civil Case No. 175 of 1940

Mortgage suit-Suit including prayer for personal decree instituted by plaint-Order 34, rule 3A, Civil Procedure Rules.

The plaintiff instituted a suit on a mortgage deed by presenting a plaint asking for accounts to be taken, sale and personal decree in the event of there being a deficiency. The defendant by his advocate raised a preliminary objection that all proceedings to enforce a mortgage security must be by way of originating summons.

Held (17-3-41).—That where a mortgagee prays, inter alia, for a personal decree against the mortgagor he must proceed by ordinary action and not by way of originating summons.

### Archer for the Plaintiff.

#### Khanna for the Defendant.

RULING.—Mr. Khanna for defendant raised a preliminary objection to this action, submitting that no action now lies to enforce a mortgage security under our Civil Procedure. His submission was based on Order 34, rule 3A, which $reads:$ —

"Any mortgagee or mortgagor, whether legal or equitable, or any person entitled to or having property subject to a legal or equitable charge, or any person having the right to foreclose or redeem any mortgage, whether legal or equitable, may take out as of course an originating summons, returnable before the judge in chambers for such relief of the nature or kind following as may be by the summons specified, and as the circumstances of the case may require; that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance, delivery of possession by the mortgagee."

He contended that by virtue of this rule all proceedings to enforce a mortgage security must be by originating summons. In support of this contention Mr. Khanna cited Redditch Benefit Building Society v. Roberts (1940), 1 Ch. 415. This case, instead of being an authority in favour of Mr. Khanna's proposition, is the reverse as will appear from the following extract from the judgment of Clauson, L. J. (who delivered the judgment of the court) at pp. 420 and 421: "It was for that reason that three years ago, by Rules of Court it was laid down ....... for the first time that the jurisdiction on originating summons should be extended so as to enable the Court on the originating summons not onl to give the usual. equitable relief but also judgment for payment of the debt. That step had the result that all the rights of a mortgagee under a mortgage of this kind could be dealt with on originating summons". The particular rule to which the learned Lord Justice referred was rule 5A of Order 55 of the Rules of the Supreme Court, England, as amended by R. S. C. (No. 3) of 1936, which is in similar terms to rule 3A of our Order 34 with this very important distinction that in addition to the relief specified in rule 3A there is in the English rule specific provision for the making of an order for payment of the moneys secured by the mortgage or charge. I would also cite the following passage from the notes on Order 55, rule $5A$ R. S. C., appearing on p. 1148 of the Annual Practice 1941:-

"Personal order against mortgagor—Before the R. S. C. (No. 3), 1936 amendment to this rule an action for payment under the covenant had to be commenced by writ. But by the rule as reconstituted a personal order is now available thereunder."

Mr. Khanna contended that the reliefs specified in Order 34, rule 3A, were merely inserted by way of illustration and to give the Court an idea that it can give relief incidental and similar to those specified and that there is accordingly power to make a personal decree on an originating summons in view of the fact that the rule contains the words "such relief of the nature and kind following". He sought to invoke the ejusdem generis doctrine which is clearly not applicable in the present case as that doctrine only applies where a general word is used following and not preceding (King v. George, 5 Ch. D. 627) one or more less general terms ejusdem generis. Furthermore relief by way of a personal decree is not in the same genus or category as the other reliefs specified in rule 3A.

I accordingly hold that where, as in the present case, a mortgagee prays, inter alia, for a personal decree against the mortgagor he must proceed by ordinary action and not by way of an originating summons.