Inayatullah Khan Decree-Holder v. Hashmatullah Khan Judgment-Debtor .

1. This appeal arises out of an application for execution of a compromise decree. The compromise decree was a very peculiar one. It was made in a suit for dower brought by the plaintiff as one of the heirs to his daughter for a proportionate share of her dower. The compromise decree provided that after the expiration of ten years the defendant would sell to the plaintiff certain property for the sum of Rs. 12,000 made up as in the compromise is set forth. The compromise decree contained a curious provision that the plaintiff was “to pay or deposit” in Court the price of the stamp, registration fee and another sum of Rs. 15 by the lab May, and that if he did not do so his claim should stand dismissed with costs except for the sum of Rs. 700 due to one Badam Singh. The plaintiff did not tender or pay in cash to the defendant the price of stamp, the registration fee or the sum of Rs. 15, but he remitted by money order a sum which we may take to be sufficient to cover those items. The money was paid into the Post Office on the 10th April and should no doubt under ordinary circumstances have reached the defendant before the 1st May. The plaintiff got back the money order on the 6th June, with a notification that the defendant had refused to accept it on the 21st May.

2. The compromise decree also contained a provision that an agreement was to be executed within three months from its date containing the terms of the compromise. Such an agreement was in fact executed by the defendant and it contained a hypothecation of the very property which was to be sold to the plaintiff in order to secure the due fulfilment of the conditions of the compromise decree by the defendant. In the application for execution the plaintiff alleged that under the terms of the compromise decree if there was default on the part of the defendant he should be entitled to execute the decree for the sum of Rupees 5,150 with interest at the rate of eight annas percent, per mensem and for Rs. 700 paid to Badam Singh, and his application was for such execution and asker for the sale of the property, (It is quite possible that the plaintiff considered under the terms of the compromise decree that he was entitled to put up the property for sale as if it had been mortgaged.) Two objections were taken in the Court below by the defendant.

3. In the first place it was contended that the stamp, registration fee and the Rs. 15 were neither “paid or deposited” before 1st May 1917, and that consequently the plaintiff on the terms of the decree itself lost all rights thereunder. It is next contended that having taken a mortgage of the property the property could not be brought to sale except by proceedings in a suit under the mortgage. The Court below decided both of these objections in favour of the defendant and dismissed the application for execution altogether. The decree-holder comes here in second appeal.

4. We doubt much whether the Court was right in holding that the property could not be sold because of the mortgage which was executed by the judgment-debtor. This mortgage was merely collateral security for the due fulfilment of the conditions of the compromise by the defendant. We think that if there had been no other objection the plaintiff would have been entitled to have had the property sold to realise his claim as a simple money decree. The law as to bringing to sale property upon which a party has a mortgage is now regulated by O. 34, R. 14 of the CPC and mortgaged property can be brought to sale so long as the claim does not arise “under the mortgage.” The present claim would be a claim under the decree and not a claim under the mortgage. The next objection seems more serious. The Court has to execute the decree as it stands. The decree undoubtedly contains a provision that if the plaintiff failed to pay or deposit in Court the price of stamp, registration fee and the sum of Rs. 15, his claim should be dismissed except as to the sum of Rs. 700 due to Badam Singh. We find it impossible to hold that the mere remitting of a money order which so far as the evidence goes was not only not accepted but did not even reach the defendant until after the prescribed period is a payment within the meaning of the clause in the decree. We think that the view taken by the Court below that this was a fatal objection to the execution of the decree for the Rs. 5,150 and interest was correct. The Court seems to have overlooked the fact that the plaintiff was entitled notwithstanding the non-payment of the registration fee etc., to execute his decree for Rs. 700. We allow the appeal to this extent that we modify the order of the Court below by declaring that the plaintiff is entitled to execute his decree for the sum of Rs. 700 paid to Badam Singh. With this declaration we remand the case with directions to proceed with execution having regard to what we have stated above. We direct the parties to pay their own costs in both Courts.

V.B/R.K

5. Case remanded.