These appeals are directed against an order by which the Court below has allowed execution to proceed on the basis of a mortgage decree at the instance of an assignee thereof. The circumstances under which the application for execution was made have not formed the subject of serious controversy in this Court, and may be briefly recited for our present purpose. On the 22nd November, 1895, two brothers, Dhanukdhari Sing and Harihardhari Singh, executed a mortgage in favour of Saligram Singh. On the 6th February, 1902, the mortgagee sued to enforce the security against the mortgagors and sixty-four other persons who had acquired an interest in the equity of redemption. On 2nd July, 1902, an ex parte decree was made in favour of the Plaintiff mortgagee under sec. 88 of the Transfer of Property Act in the following terms.

“That an ex parte modified decree be passed in favour of the Plaintiff for Rs. 33,530-10 and proportionate costs, and interest on Rs. 25,000 principal at the rate of one rupee per cent, per mensem from the date of the institution of the suit, i.e, from the 6th February, 1902 up to the date of realization, if the money be paid within six months of the date on which the decree is signed, otherwise the interest will tun at the above rate till six months after the date on which the decree is signed, and thereafter interest will be calculated at the rate of six per cent, per annum on the whole amount of the decree until that of realisation. It is further ordered that Defendants, excepting the Defendants Nos. 25 to 27, do pay the decretal money with costs and interest within six months from the date the decree is signed, and in case of non-payment within the time fixed by the Court, the mortgaged properties will be sold by auction, and the sale consideration, after deducting the expenses of realisation and sale, be credited against the decreta money, costs and interest”

It is admitted that up to the 22nd May, 1905, a sum of Rs. 23,118 had been deposited by the judgment-debtors to the credit of the decree-holder: it is alleged that out of this sum Rs. 14,746 was contributed by Dhanukdhari and the balance Rs. 8,332 by Harihardhari. On the 17th November, 1905, Harihardhari was declared a disqualified proprietor and his estate passed into the custody of the Court of Wards. On the 21st November and 13th December, 1905, the Court of Wards paid to the representatives of the decree-holder who had meanwhile died Rs. 16,000 and on the 18th December another payment was made to the extent of Rs. 4,940-12. It is necessary to state here that the representatives of the decree-holder had taken out execution for Rs. 20,940-12 and the 18th December, 1905 had been advertised as the date of the sale. The result of the payments was that the decree-holders put in an application to the effect that for the present, the execution case be “struck off”. The excution case was thereupon dismissed. On the 6th July, 1908, the representatives of the decree-holder executed a deed of assignment of their rights under the decree to the representatives of Harihardhari, and on the 28th November, 1908 the Court of wards on their behalf applied for execution of the decree. The application did not set out the specific sum for the realisation of which execution was taken out; but it was stated that the effect of the assignment was to extinguish the mortgage lien only in so far as the share of the assignee judgment-debtor was concerned. It was further alleged that execution was claimed in respect of the half share of the mortgaged premises owned by Dhanukdhari. Objection was preferred separately by several of the judgment-debtor on the two-fold ground that the nature of the decree was such as to extinguish the judgment-debt on assignment to one of the judgment-debtors, and that, as a matter of tact, the decide had been satisfied by the payments made on the 21st November and 13th and 18th December, 1905, so that the assignor had no subsisting interest to convey to the assignee on the 6th July, 1908. The subordinate Judge overruled these objections, and allowed execution to proceed. The objectors, judgment-debtors, have preferred separate appeals to this Court, and the order of the Subordinate Judge has been assailed substantially on two grounds, namely, first, that the decree was one for money within the meaning of sec. 232 of the Civil Procedure Code of 1882, and that, consequently, upon transfer by the decree-holders to one of the judgment-debtors it became incapable of execution under cl. (b) of the proviso to that section and, secondly, that the effect of the payments admittedly made to the decree-holders in November and December 1905 was to extinguish the judgment-debt. In support of the first of these grounds, it has been urged that as the decree called upon the judgment-debtors to pay the decretal money within a specified period it was a decree for money within the meaning of sec. 232 of the Code of 1882. In our opinion, this contention is not sustainable. Sec. 232, after providing that when a decree has been transferred by assignment in writing or by operation of law it may be executed by the assignee, lays down that where a decree for money against several persons has been transferred to one of them, it shall not be executed against the others. The question which requires consideration is, whether the decree in the case before us is a decree for money within the meaning of this proviso. The plain meaning of the proviso is that it is applicable only to the case of a decree for payment of money personally by several persons jointly: in other words, the expression “a decree for money against several persons” signifies a personal decree for the payment of money against two or more Defendants jointly. This is manifest from an examination of the principle which underlies the rule, as explained by Sir Barnes Peacock, C.J, in the case of Deegumbare Dabee v. Ethan Chandra Sen(1). That principle is that if one debtor satisfies the judgment-debt and takes an assignment of it, he cannot enforce it by execution or in any way against his codebtors; his only remedy is to sue them for contribution and to compel them to pay him their share of the amount for which the decree was purchased, having regard to the proportion in which they were bound inter se to satisfy the original decree the position is different, if there is collateral security to which recourse may be had. [Reed v. Norris(2), Dowbiggen v. Bourne(3) as to which, see Cooper Pr, Co. 645 and Armitage v. Baldwin(4), See also Copis v. Middleton(5), Hodgson v. Shaw(6), Holmes v. Day(7) Story on Equity Jurisprudence, secs. 499B, 499C]. The learned Vakil for the Appellants did not seriously dispute this proposition, and in view of the decisions in Panachand v. Sundarbai(8) and Lala Bhagun Prosad v. Holloway(9), the position, indeed, could not be seriously challenged. The learned Vakil, therefore, directed his efforts to distinguish the case before us from those to be found in the reports, on the ground that in those cases the decrees merely directed the sale of the mortgaged properties, and did not, as here, call upon the judgment-debtors to pay the decretal amount. In our opinion, the distinction suggested is entirely unsubstantial. In a matter of this description, we must look to the substance, rather than to the form. It is immaterial whether or not the decree formally calls upon the judgment-debtors to pay the decretal amount, if upon failure to make the payment, the only relief granted to I be decree-holder is the sale of the mortgaged properties. A decree of this character is in its essence a decree for sale and can by no stretch of language be deemed a decree for payment of money, In the case before us, as we have already stated, besides the two mortgagors Defendants, there were sixty-four other persons who were joined as Defendants, because they had acquired an interest in the equity of redemption. These latter persons, it is not disputed, were not personally liable for payment of the mortgage money, though, no doubt, the mortgage property in their hands was liable to be sold for the satisfaction of the judgment-debtor. But the decree calls upon all the judgment-debtors without distinction to pay up the decretal amount, and directs that upon their failure to do so the mortgage properties be sold. There can therefore, be no room for even soy plausible contention that the decree was intended to be a personal decree. It may be observed that the expression “decree for money” or an equivalent expression occurs, not merely in sec. 232 of the Code of 1882, but also in other parts of the Statute (see for instance, secs. 230, 258 and 295). In so far as sec. 230 is concerned, with regard to the question whether a mortgage decree is a decree which directs the payment of money, the view has sometimes been maintained that a decree which not only directs the sale of the hypothecated property, but also provides that if the sale-proceeds are insufficient to satisfy the judgment-debt, the decree may be executed against the Defendant personally is a mortgage decree [Fazil Hawaladar v. Krishna Bardhoo(10), Rartick Nath v. Jaggetnath(11), Ram Charan v. Skeokarat(12), Jadu Nath v. Jagmohan(13). See also Pahalwan v. Narain(14)]. We are, however, not now concerned with the true nature of a composite decree of this character, which, as pointed out in Chandi Chatan v. Ambika Chatan(15). and Abbakki v. Krishnaya(16), is contrary to the procedure prescribed by secs. 88 and 90 of the Transfer of Property Act. [See also Gopal Dass v. Ali Muhammad(17)]. For an illustration of a case of a composite decree, reference may be made to Hart v. Tata Prosanna Mukherji(18), where the question arose with reference to sec. 295 of the Code of 1882. The learned Judge held that every decree by virtue of which money is payable is to that extent a decree for money within the meaning of sec. 295, even though another relief, namely, sale of the mortgaged premises, may be granted by that very decree. The decree in the case mentioned was made before the Transfer of Property Act, and entitled the decree-holder to realise a specified sum from the mortgage property and from the Defendants personally; [see also Abdulla v. Oosman(19), Vaidhinadasamy v. Soma Sundtam(20), where also the decree contained an order for the sale of the mortgage property and for the recovery personally from the Judgment-debtor of what may remain undischarged by the sale-proceeds of the mortgage property]. The case before us is, therefore, clearly distinguishable from the cases upon which reliance is placed by the learned Vakil for the Appellants. The decree is in substance for sale of the mortgage property, and it cannot rightly be deemed a decree for money within the meaning of sec. 232 of the Code of 1882 Nuffer Chandta v. Baikunt Nath(21). The first contention of the Appellants must, therefore, be overruled.

In so far as the second contention of the Appellants is concerned our attention has been drawn no the circumstance that the payments on behalf of Harihardhari to the decree-holders were made in November and December 1905. But the deed of assignment was not executed till the 6th July, 1908: meanwhile, Harihardbari had died on the 2nd March, 1907. The learned Vakil for the Appellants has contended that the money paid in 1905 was for satisfaction of the decree and not for any intended assignment thereof. On behalf of the Respondent it has been argued, on the other hand, that the assignment effected by the deed of the 6th July, 1908 was in contemplation in 1905. We are unable, after careful consideration of all the surrounding circumstances, to accept the contention of the Respondents as established by the evidence on the record. It will be observed that the long delay in the execution of the deed or assignment is not satisfactorily explained, and the solitary witness examined on behalf of the assignees completely gives away his case when he admits that he cannot say whether the payments recited in the assignment deed were made in satisfaction of the decree. It must further be observed that in 1905 when these sums were paid, if the payments were made with a view to purchase the decree, the sanction of the superior offier is of the Court of Wards in ordinary course would be taken. No contemporaneous documentary evidence has, however, been produced. It is also a matter of legitimate comment that the assignors have not been, though they easily might have been, examined. We are not unmindful that the somewhat laconic and ambiguous expression used by the decree-holders in their petition of the that December 1905, namely, “for the present, the execution be struck off” may tend to some extent to support the theory of an assignment. But is equally consistent with the case that the decree-holders may have reserved room for consideration whether the whole sum realisable under the decree which carried interest had been paid. We do not also overlook the circumstance that the payments were not certified to the Court. But this is equally consistent with the case of the Appellants, as it merely indicates that the Court of Wards relied implicitly upon the good faith of the decree-holders; whether the intention was that the decree should be satisfied or should merely be assigned, the judgment-debtor who made the payment took it for granted that the decree-holders would deal honestly with him. On the other hand, we have the significant circumstance that no mention was made in the application by the decree holders on the 18th December, 1905, that they had arranged to divest themselves of all their rights under the decree in favour of one of the judgment-debtors. This taken along with the circumstance that the first tangible evidence of the assignment is the deed of the 6th July, 1908, executed nearly three years after the payment of the consideration money, lends strong support to the theory of the Appellants that the assignment, if not absolutely an after, thought, was at any rate not finally and definitely settle in 1905; as, indeed, the witness for the decree-holders admits, it was the result of subsequent negotiations, probably suggested by the necessity of a contribution suit which must otherwise inevitably result. On the whole, we are of opinion that the Respondents have failed to establish conclusively that there was in 1905, when the payments were made, any concluded agreement for assignment, and we are inclined to adopt the view that it was subsequently decided to have recourse to a deed of assignment to avoid the necessity for a contribution suit. This latter aspect of the case is rendered more than probable by the allegation of the Appellants that the sums paid towards the satisfaction of the decree before the 31st November, 1905 had not been contributed by the mortgagors in equal proportion, and that the representatives Harihardhari have taken recourse to a deed of assignment, because otherwise as Plaintiffs in a contribution suit they would have to meet any equitable defence that might be taken by. Dhanukdhari. The second contention of the Appellants must consequently prevail.

The result, therefore, is that these appeals are allowed, and the order of the Court below discharged. The Appellants are entitled to their costs both here and in the Court below. We assess the hearing-fee in this Court at three gold mohurs in each appeal.

Appeal allowed.