Beaumont, C.J:—

This is an appeal from a decision of the First Class Subordinate Judge of Dharwar, and it raises a question in execution, which has caused some difference of opinion in this Court, and is of very common occurrence.

In 1928 the plaintiff made an advance of Rs. 8,000 to the defendant, and certain shares were charged to secure the amount. In 1931 the plaintiff sued to recover the amount due, and on November 28 there was a consent decree. The decree recites the plaint, and then (in cl. 1) directs the defendant to pay to the plaintiff a lump sum of Rs. 9,000 by yearly instalments of Rs. 2,000. Then there is a default clause making the whole amount payable on default of payment of two instalments. Then it is provided that a charge in favour of the plaintiff for the decretal amount of Rs. 9,000 is kept upon the suit shares, and then the decree goes on: “If defendant fails to pay the moneys in time, the same should be recovered by sale of the said shares.” The defendant failed to pay the instalments on the due dates, and in 1934 the shares were sold and realised Rs. 4,350. In 1936 the plaintiff took out the present darkhast to recover the balance of the debt by attachment and sale of a house belonging to the defendant. It is contended by the defendant that the plaintiff, having taken a charge on specific shares, has abandoned his right to recover the money by any other means. Alternatively, it is said that if he desires to recover the money by any other means, and has a right to do so, he must first of all proceed to get a personal decree for payment. The learned Subordinate Judge decided in favour of the plaintiff.

Now, taking the decree as it stands, and without reference to authorities in the first instance, I should have thought that its meaning was perfectly plain. It is very common to have a consent decree for payment of money making the amount payable by instalments; but if the creditor agrees to instalments, he is, of course, abandoning his present right to execute the decree for the full amount due, and to compensate him for that it is very common for the debtor to give him a charge on property. In the present case, property, namely the shares, had been charged beforehand, but I think the same principle would apply if the charge had been created in the first instance by the decree. But in taking a charge it seems to me that what the creditor is looking to is his protection against the rights of intervening creditors, who may attach property of the judgment-debtor whilst the plaintiff's hands are tied by the time given for payment of instalments. That seems to me to be the object of a charge; not to regulate the order in which the defendant's property is liable to be attached. Taking cl. (1) of this decree, it is perfectly plain that it amounts to an order for payment, and, if such clause stood alone, it could be enforced by any of the methods authorized by the Civil Procedure Code, including attachment and sale of any of the defendant's property. There is nothing in the rest of the decree which expressly takes away or limits that right, and I can see no reason why it should be held that the plaintiff by implication has deprived himself of that right or delayed its enforcement, merely because he has protected himself against other creditors by taking a charge on part of the defendant's property. Therefore, if I had to construe the decree without reference to authorities, I should say that there was no doubt whatever that the plaintiff, having failed to realize the whole amount of his debt by sale of the charged shares, can proceed under the decree to attach any other property of the judgment-debtor which may be available.

However, there are undoubtedly two cases in this Court, which are against that view. There is, first of all, a decision of an appellate bench in Janardan v. Krishnaji. The learned trial Judge distinguished that case by pointing out that it was a mortgage suit, as no doubt it was, but in that mortgage suit there was a consent decree, very much in the same terms as the decree in the present suit. Mr. Justice Shah, in the Court of first instance, said this (P. 956):—

“I see no reason to limit the plain meaning of the decree as to the payment of the full amount in instalments by the provision as to the realisation of the full amount by the sale of the mortgaged property in default of the payment of any two instalments. The decree directs the defendants to pay the full amount, and the obligation is not in my opinion limited by the provision relating to the sale of the mortgaged property.”

I think that is right; but in appeal Sir Norman Macleod, the Chief Justice, said (p. 958):

“It seems clear to me that there must be a decree personally made against mortgagor before it can be executed against property other than the mortgaged property. The decree in this case cannot be said to be a personal decree merely because it directs that the defendants should pay the amount.”

With all respect to the learned Chief Justice, I do not follow the last proposition. A decree which directs payment of the amount is prima facie a personal decree. The Court in that case purported to act by analogy to O. XXXIV of the Civil Procedure Code. Now, O. XXXIV is a Code, which regulates the enforcement by suit of mortgages, and the scheme of the Order is that in the preliminary decree there is a direction on the mortgagor to pay the amount found due into Court; on payment there is to be redemption, and on failure to pay, the morgaged property can be ordered to be sold; and then there is liberty reserved to the mortgagee to apply for a personal decree against the mortgagor for any balance not realized. That is the general scheme of the Code, and where one is dealing with a decree in a mortgage suit relating to immoveable property, one must follow that scheme. I agree that one must read the decree as a whole, and if a preliminary mortgage decree provided, in the first instance, that the mortgagor should pay the amount, not into Court but to the mortgagee, the Court would not be justified in construing that as an executable decree for payment, because, taking the decree as a whole, it provides that there is not to be a personal decree for payment until the mortgaged property has been sold and a deficit has resulted. But I cannot see any reason why one should apply the analogy of a mortgage decree to a consent decree, which must be construed according to the terms of the language used. Mr. Desai contends that the principles of O. XXXIV should be applied. I do not quite know what is meant by the principles of O. XXXIV. It would have been quite easy to provide in the Code that in the preliminary decree there should be a personal judgment for the balance remaining due after sale of the mortgaged property. There is no principle of equity which I know of, which would make such a provision improper; but it happens that is not the scheme of the Code framed by the Legislature. There is, however, to my mind nothing inequitable in construing an agreement between parties so as to provide that the mortgagor shall pay to the mortgagee anything remaining due after sale of the mortgaged property, or that there shall be a personal decree for payment, which may be enforced before recourse is had to the mortgaged property. There is nothing inequitable in requiring that a debtor shall pay his debt immediately after the liability has been ascertained. In my opinion, the decision of Mr. Justice Shah in Janardan v. Krishnaji is right, and the decision of the appellate Court was wrong.

Then there is another case, to which we have been referred, a very recent decision of this Court in a Letters Patent Appeal from a decision of Mr. Justice N.J Wadia (Raychand Jivaji v. Basappa Virappa In that case there was a consent decree under which the defendant was directed to pay a certain sum by instalments: there was no default clause, but certain immoveable property was charged for the amount. It may be that the absence of a default clause creates a distinction; the case has not yet been reported, and I do not know the exact facts. But Mr. Justice Broomfield in giving the judgment of the Court refers to Janardan v. Krishnaji and to other cases, and he concludes in these words (p. 146):—

“In every case it must be essentially a question of construction of the decree, but unless the contrary appears, we think the ordinary rule should be that when a charge is created by act of parties the specification of the particuar fund or property negatives a personal liability and the remedy of the holder of the charge is against the property charged only or at any rate against the property charged in the first instance. In my opinion that is the way in which the decree in this case should be constructed.”

I am unable to agree with that conclusion. To apply such a rule of construction to a consent decree for payment of money would seem to me to be wrong in principle, and inexpedient in practice. In arranging consent decrees of the nature in question, it is usually the creditor, and not the debtor, who is master of the situation, and I can see no justification for holding that, by taking a charge upon specific property, the primary object of which, as I have pointed out, is to secure him against other creditors, the creditor abandons his right to proceed against other property of the debtor. Such an abandonment should not be presumed in the absence of language making clear the intention to abandon. On the other hand, to hold that the creditor can only attach other property after obtaining a fresh order for payment is to ignore the fact that the decree already contains an order for payment. The only effect of the latter construction would be to impose further delay and additional expense upon the creditor. In this country experience shows that there are opportunities in plenty afforded to a judgment-debtor to delay his creditor, and I am not disposed to add to the number.

We were referred to other cases which can be distinguished. Ambalal Bapubhai Gujarati…Plaintiff v. Narayan Tatyaba Bhosale…Defendant . which was followed in Gurupadappa v. Karveerappa is rather in favour of the view which I take, but is no doubt distinguishable. In both those cases there had been a decree and a charge created by the decree on immoveable property, and it was held that the charge could be enforced by execution of the decree without the necessity of filing a separate suit. The cases were both based on the view that the decree, which for practical purposes was in the same terms as the present decree, created a personal liability for payment of the amount due, and to that extent the cases are in favour of the view which I take. The decision of Mr. Justice Kania in Gurupadappa Mallappa Kalasgond…(Original Judgment-Debtor), v. Basappa Shiddappa Kalagi…(Original Decree-Holder), .* is again distinguishable. The learned Judge there held that the particular decree, with which he had to deal, was in the nature of a preliminary mortgage decree, and that being so, the provisions of O. XXXIV applied to it. It is not necessary to consider whether I should have come to the same conclusion as to the construction of that particular decree, but I agree that if once you find that the decree is in its nature a preliminary mortgage decree, the provisions of O. XXXIV apply, and there must be a further application for a personal decree. But, in my opinion, the decree with which we have to deal is quite plain in its meaning. It does not in terms restrict the right of the creditor to proceed against other property, and it does contain a decree for personal payment. It can therefore be executed against the house of the judgment-debtor.

In my opinion, therefore, the decree appealed from was right. The appeal will be dismissed with costs.

Macklin, J.:—I agree and have nothing to add.

Wassoodew, J.:—I agree.

Appeal dismissed.

Y.V.D