Chaurasi Mahasarick v. Bhagan Sahu

Dawson Miller, C.J:— This is an appeal on behalf of the judgment-debtors in a suit brought upon a mortgage in which a compromise decree was passed. The respondents, who are the decree-holders, sought to execute their decree. The judgment-debtors raised certain objections. The Court rejected those objections and on appeal the District Judge affirmed the decision of the Sub-ordinate Judge. From the decision of the District Judge the judgment-debtors have appealed to this Court.

It appears that the decree-holders instituted a suit against the judgment-debtors in order to enforce a mortgage executed in their favour by the judgment-debtors. The result of that suit was a compromise. The compromise provided that the judgment-debtors should pay the sum due upon the mortgage amounting to Rs. 3,800 by certain instalments, and in the event of default of three consecutive instalments, the decree-holders were to be allowed to realize the entire amount remaining due from the person and other properties of the judgment-debtors, and, in the event of the amount due not being so realized, the decree-holders were to be entitled to realize the amount from the mortgaged property, by sale. The mortgaged property is a 4-annas share of mauza Chat Majbonarah, Tauzi No. 445, and if the whole amount was not realized in that manner certain provision was made for proceeding against other property which is not material for the purpose of this appeal.

In June 1921, the decree-holders applied for execution of the decree, there having been a default in respect of three consecutive instalments under the terms of the decree. It is important to bear in mind how the application for execution was framed. The application for execution was framed as an application for execution against the property referred to in the compromise decree and for execution against that property in the order in which it became liable under the compromise decree. The mode in which the assistance of the Court was required was, first of all, by attachment and sale of the movable properties of the judgment-debtors and, secondly, by attachment and sale off the mortgaged properties. The movable properties were set out in a schedule, the mortgaged properties were merely mentioned under the description given in the decree as the 4-annas share of mauza Ghat Majbonarah, Tauzi No. 445. The movable properties apparently could not be found; at all events they were not attached, and, as far as one can gather from the judgment of the lower Courts, the judgment-debtors contended that they had no such movable properties. Having failed to effect execution by attachment of those movable properties, the decree-holders applied to the Court for attachment and sale of the mortgaged properties. In objection to that application certain points were taken on behalf of the judgment-debtors. As already stated both the lower Courts dismissed those objections and ordered the execution to proceed by attachment and sale of the mortgaged properties.

The only two points which have been urged before us in this appeal are, first, that the case comes within the provisions of Order XXXIV, rule 14, and therefore a further suit is necessary before the mortgaged properties can be sold, and, secondly, that the application for sale of the mortgaged properties in the present execution proceedings is in fact an amendment of the execution petition which, under the decided cases, the Court has no power to grant after registration of the petition.

With regard to the first point, I think it is clear that the decree obtained in the present case is something more than a decree for the payment of money in satisfaction of a claim arising under the mortgage. Order XXXIV, rule 14, applies to a decree of that nature and it provides that the mortgagee, having obtained such a decree, shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage; and it further provides that he may institute such suit notwithstanding anything contained in Order II, rule 2. The class of case contemplated in Order XXXIV, rule 14, appears to me to be that class of case in which a suit is brought upon the covenant to repay contained in the mortgage deed or upon the debt arising out of that covenant or in respect of some other obligation arising out of the mortgage and not to a suit which is brought in order to enforce a sale of the mortgaged properties. This rule corresponds with, or rather takes the place of, section 99 of the Transfer of Property Act which is repealed by the Civil Procedure Code, and under the previous Act it had been held that a suit of the nature described in Order XXXIV, rule 14, did not entitle the mortgagee to put to sale the mortgaged properties. The old enactment was, with a slight modification, re-enacted in the Civil Procedure Code and still remains the rule. It seems quite obvious that there may be very good reasons for refusing to allow the mortgaged properties to be sold merely because the mortgagee has obtained a decree against the mortgagor, not in the form of a mortgage decree but merely in the form of a personal decree against the mortgagor, a decree which does not in any way affect the mortgaged properties. In such a case it is clearly desirable that before the charge upon the mortgaged properties can be enforced there should be a decree directing the enforcement of that charge. The present case is one entirely different. The decree obtained in the present case was, with a slight modification, exactly the sort of decree obtained in an ordinary mortgage suit. The suit was a mortgage suit and a suit praying for the sale of the mortgaged properties; but by a compromise between the parties, instead of the ordinary form of mortgage decree being passed, which would order the judgment-debtor to pay the decretal sum within a certain time, failing which it would order the mortgaged properties to be sold, the compromise decree provided that the judgment-debtor should pay the decretal amount by certain instalments and if he should fail in the payment of three consecutive instalments then execution for the whole amount due should issue against the other properties of the judgment-debtors and in the event of the amount not being realized in that manner against the mortgaged properties. It is, therefore, clear that the decree itself in this case orders in the event of default and in the event of the other properties of the judgment-debtors proving insufficient, a sale of the mortgaged property itself, and I can see no reason why it should be necessary, in the event which has happened, for the decree-holders to have to bring another suit asking again for the sale of the property merely because the other remedy given under the decree has proved infructuous. This case is altogether different, to my mind, from the case contemplated in Order XXXIV, rule 14, and the appeal on that ground must fail.

With regard to the second point, it has no doubt been held in the case of Asgar Ali v. Troilokya Nath Ghose that, under the provisions of Order XXI, rule 17, no amendment of the execution petition is permissible after the petition has been registered. It would follow, therefore, that if the decree-holder wishes to execute his decree in some manner not provided for by the execution petition he must bring a fresh execution case for that purpose. In later cases, however, more particularly in the case of Gnanendra Kumar Roy v. Rishendra Kumar Roy and a more recent case in this Court, Rai Bahadur Ram Sumran Prasad v. Ram Bahadur*, it has been held that an application to file a fresh list of properties against which execution is sought is not an amendment of the execution petition. The present case, however, is even a clearer case than either of those mentioned because in the present case, upon looking at the execution petition filed, it appears that execution was asked for not merely by attachment and sale of the movable properties of the judgment-debtors but also by attachment and sale of the mortgaged properties, if the former should prove to be insufficient. It is, therefore, abundantly clear that the present application to be allowed to proceed against the mortgaged properties comes directly within the execution petition itself, and it requires no amendment of the execution petition to enable the Court to proceed against those properties.

For these reasons I think that this appeal must fail on both grounds. The result is that the appeal is dismissed with cots to the respondents who have appeared.

Kulwant Sahay, J.:— I agree.

Appeal dismissed.