Mullick, J.:— In second appeal the first point taken is that the decree being declaratory cannot be executed and that the only remedy of the decree-holder is to bring a separate suit. Now, although the decree is declaratory it clearly means that the maintenance allowance shall be recovered from the property charged and the question simply is what is the proper procedure for the enforcement of the relief. In my opinion there is no reason why recovery should not be made by the agency of the execution Court. Although neither the original decree nor a copy of it has been filed, it is clear from the recitals in the judgments of the Courts below that it is a decree which was intended to be executed and that it was not the intention of the trial Court to subject the decree-holder to the expense of a separate suit. Raja Braja Sunder Deb v. Sarat Kumari is clear authority in favour of this view.
Then it is urged that even if the decree can be executed the plaintiff cannot bring the property to sale in the present execution and that he must first sue under the provisions of section 67 of the Transfer of Property Act. The reply to this again is that Raja Braja Sunder's case is authority which binds us. On the other hand we have been referred to Gokulnath Jha v. Pran Mal Marwari as authority for the view that the execution cannot proceed and that a decree for the enforcement of a mortgage must be first obtained. It does not appear that the particular point before us was directly raised in that case. In that case there was a mortgage bond in respect of the property charged and the Court held that as there was a separate bond which was capable of being enforced it was not open to the decree-holder to resort to the procedure of the execution Court. There may have been observations in that case to suggest that the compromise decree could not be enforced otherwise than by a suit; but these observations were not necessary for the decision itself.
We have also been referred to Aubhoyessury Dabee v. Gouri Sunkur Panday. There also a consent decree was sought to be executed and the properties secured were advertised for sale in the execution Court. It was held in second appeal that the proper procedure was to obtain a decree for sale as in a mortgage suit and that the execution could not proceed. Now, in the first place, this case is not binding upon us in the face of the decision in Raja Braja Sunder Deb v. Sarat Kumari. In the second place with the greatest respect it seems to me that the claim now before us is not one which arises under any mortgage and that, therefore, the provisions of rule 14 of Order XXXIV, which prohibit the enforcement of a mortgage, except in the manner provided in the Code, do not apply here. It does not follow that in every case where it is sought to enforce a charge the person for whose benefit the charge is created must resort to the procedure for enforcements of claims under a mortgage. Section 99 of the Transfer of Property Act of 1882 has been repealed, and as the claim here arises out of a money decree there is no reason why the interest of the judgment-debtor should not be sold without a suit for sale. The provisions of rule 15, Order XXXIV, are not in any way material to the discussion.
The result, therefore, is that the appeal is dismissed with costs.
Ross, J.:— I agree.
Appeal dismissed.