Nripendranath Chattarji v. Jhumak Mandar

Das, J.:— (After stating the facts, as set out above, proceeded as follows):—

In my opinion the judgment of the learned Subordinate Judge is wrong and should be set aside. I will first deal with the question, whether it was necessary for the decree-holders to obtain a final decree under Order XXXIV, rule 5, of the Code. Now, it is obvious to my mind that a decree under Order XXXIV, rule 5, could not be asked for unless a preliminary decree under Order XXXIV, rule 4, had been passed by the Court. The second part of Order XXXIV, rule 5, is in these words:

“Where such payment is not so made, the Court shall on application made in that behalf by the plaintiff, pass a decree that the mortgaged property, or a sufficient part thereof, be sold, and that the proceeds of the sale be dealt with as is mentioned in rule 4.”

But this decree was never passed under Order XXXIV, rule 4, and therefore, in my opinion it was not open to the decree-holders to apply for a final decree under the provisions of Order XXXIV, rule 5. Mr. Yunus contends that a mortgage decree is incapable of execution unless the final decree under Order XXXIV, rule 5, has been passed. With this contention I am unable to agree. Mr. Yunus concedes that compromise decrees stand on a different footing; but, in my opinion, there is no difference in principle between a compromise decree and a decree in terms of an award. The arbitrator passing an award is in no way bound by the provisions of Order XXXIV, rule 4. In this case the arbitrator passed a decree for a sum of money and directed that decree should be realized by sale of the mortgaged property. In my opinion, the decree is enforceable as a decree passed by a competent Court, and it was not open to the learned Subordinate Judge, dealing with this matter, to say that the decree could not be executed unless the procedure indicated in Order XXXIV, rule 5, had been complied with. As I have already mentioned, it is quite impossible for a decree-holder to have recourse to the provision of Order XXXIV, rule 5, unless the decree is in terms of Order XXXIV, rule 4. The decree in the present case was not in terms of Order XXXIV, rule 4, and the objection is really to the terms of the decree, as passed by the arbitrator; and this is an objection which was not open to the learned Subordinate Judge who was executing the decree.

[The remainder of the judgment is not material to this report.]

Ross, J.:— I agree.

Appeal allowed.