This is an appeal by the Defendants against a judgment of the learned District Judge of Murshidabad, dated the 18th May, 1914, reversing the decision of the Munsif at Berhampur. The appeal is preferred in the main against a decree absolute made in a suit to enforce a mortgage security by way of sale. The Defendants are now in the shoes of the mortgagors who were their predecessors-in-title. The Plaintiffs are the sons of the original mortgagee. The suit was brought by the Plaintiffs to enforce the mortgage and, on the 10th August, 1908, a preliminary decree for Rs. 130 was made by the first Court. An application was then made on the 8th 8th April, 1911 for a decree absolute and the decree was made abslute ex parte on the 6th May, 1911. Subsequently, that ex parte decree was set aside and the case was brought on for re-hearing. The case set up by the Defendants who are now the mortgagors was that more than three years ago they had paid the whole of the amount awarded by the preliminary decree out of Court to the Plaintiffs. The learned Judge of the lower Appellate Court held that, as the payment had not been certified to the Court, under the provisions of Or. XXI, r. 2, the Court could not recognise it. Against that the present appeal has been brought.
Under the terms of Or. XXXIV, C.C.P, the scheme stated generally is that, in a suit to enforce a mortgage, the money payable to the mortgagee under a decree for foreclosure or sale or redemption should, in the first instance, be paid into Court and the method of payment to the mortgagee as is authorized by the Transfer of Property Act has been abolished. In a suit for sale, as appears from Or. XXXIX, r. 5, when on the day fixed the Defendants pays the amount into Court, the Court shall pass a decree as mentioned in that rule; but when such payment is not made into Court on or before the day fixed, the Court shall, on an application made by the Plaintiff, pass a decree that the mortgaged property or a sufficient part thereof be sold. Therefore, in passing the final decree, the Court has no discretion except to follow the statutory form of the decree when no payment has been made into Court as mentioned in Or. XXXIV, r. 5, and the only other matter that there can be is that the Court may hold that the suit has been adjusted under Or. XXI, r. 2, C.P.C It is said that any other Court not being an executing Court can recognise an uncertified payment made out of Court. I am not prepared to agree with that. It seems to me that the whole of the provisions of the law providing a certification either by the decree-holder or by the judgment-debtor within the period within which the certification is to be made, would be rendered nugatory if a Defendant in a suit years after when the evidence would neither be afresh nor perhaps available is allowed to come forward and say that he has satisfied this preliminary decree out of Court three years ago by paying the money to the Plaintiff. It seems to me that it will be opposed both to the terms of the Civil Procedure Code and also to the provisions of the Indian Limitation Act. The view that the learned Judge of the lower Appellate Court took was, I think, correct. I am not prepared to disagree with the reasons that have been given and are to be found in a judgment of my own in another case. That was a case under the Transfer of Property Act and the procedure under the provisions of Or. XXXTV is essentially different from the procedure in a mortgage suit under the terms of the repealed section of the Transfer of Property Act. I think the learned District Judge was clearly right in the conclusion he arrived at that the Court could not recognise this payment which is said to have been made out of Court. The appeal, therefore, in my opinion, fails and must be dismissed with costs.
Smither, J.:— I agree.
N.G