- Bookmark
- Share
- CaseIQ
Fazil Howladar v. Krishna Bundhoo Roy
Structured Summary of the Provided Opinion
Factual and Procedural Background
This opinion concerns a decree dated 16 May 1884 which, on its face, ordered that the plaintiff "do get" the sum claimed (Rs. 323) and costs (Rs. 34-8 as.) with interest at 6% per annum from the date until realization, out of the hypothecated (mortgaged) property, and that if the property proved insufficient the defendant should remain personally liable. The last execution proceedings recorded were on 14 May 1896, and the present application for execution is dated 30 November 1896. The core procedural contest is an application to execute that decree after the expiration of twelve years from the date of the decree, raising an objection under the third paragraph of Section 230 of the Code of Civil Procedure.
The question was before the Court on appeal from lower courts which had already held that, as to any personal liability of the defendants, the application was too late and execution was confined to realization of the mortgaged property only. The present Court had to decide (1) whether the decree is a mortgage decree and (2) whether any application to execute (in particular that part permitting sale of the mortgaged property) is barred by Section 230(3) because more than twelve years had elapsed.
Legal Issues Presented
- Whether the decree in this case is a mortgage decree (i.e., a decree ordering sale/realisation of mortgaged property) as opposed to a simple decree for payment of money.
- If the decree is a mortgage decree, whether the plaintiff is precluded from taking further execution proceedings by the third paragraph of Section 230 of the Code of Civil Procedure, which bars subsequent applications to execute the same decree after the expiration of twelve years from certain dates.
Arguments of the Parties
Appellant's Arguments
- The appellant's learned Vakil contended that the decree should be treated as a decree for payment of money within the meaning of Section 230(3) and therefore that the present execution application was barred because more than twelve years had elapsed since the decree.
- The appellant relied on certain passages in the judgments of Macpherson and Trevelyan, JJ., in Jogemaya Dassi v. Thackomoni Dassi (1896) I.L.R. 24 Cal. 473, arguing those passages supported the proposition that a mortgage decree like the present one falls within the Section 230(3) limitation.
- The appellant also relied upon the case of Hart v. Tara Prasanna Mukherji (1885) I.L.R. 11 Cal. 718 as support for his position; the argument was that earlier Calcutta decisions supported treating such decrees as falling within the limitation rule.
The opinion does not contain a detailed, separate statement of the respondent's (or decree-holder's) counter-arguments beyond references to the conclusions reached by the Courts below that execution as to any personal liability was time-barred and execution should be confined to sale of the mortgaged property.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jogemaya Dassi v. Thackomoni Dassi (1896) I.L.R. 24 Cal. 473 | Serves as a point of comparison for the form and effect of mortgage decrees; certain passages in the judgments were relied upon by the appellant to support the contention that a mortgage decree may be a "decree for payment of money". | The Court concluded that Jogemaya Dassi was not decisive for the appellant because in that case there was a decree against the defendant personally; further, some observations in that case were not necessary to its decision and therefore cannot be taken as finally deciding the point here. The Court treated Jogemaya Dassi as more analogous on the terms of the decree when determining that the present decree is a mortgage decree, but not as overruling the distinction relied on here. |
| Ram Charan Bhagat v. Sheobarat Rai (I.L.R. 16 All. 418) | Held that a decree for sale of hypothecated (mortgaged) property made in a suit for sale upon a mortgage bond is not a "decree for the payment of money" within the meaning of Section 230 of the Code. | The Court expressly concurred with the reasoning and conclusion of that Allahabad decision and adopted it as decisive for the proposition that the present mortgage decree is not a decree for payment of money within Section 230(3). The decision was relied on to hold that the sale/realisation portion of the mortgage decree is not time-barred under Section 230(3). |
| Hart v. Tara Prasanna Mukherji (1885) I.L.R. 11 Cal. 718 | Illustrates a decree in which there was a distinct personal order upon the defendant to pay money; used to show contrast with decrees that merely authorize sale of mortgaged property. | The Court distinguished Hart because that case contained an express personal order to pay, which is absent here. For that reason Hart did not support the appellant's contention that the present decree was a decree for payment of money within Section 230(3). |
| Chundra Nath Dey v. Burroda Shoondury Ghose (1895) I.L.R. 22 Cal. 813 | Provided an example of a differing form of decree used for comparison (distinguished on its terms from the present decree). | The Court held Chundra Nath Dey distinguishable from the present case on the terms of the decree, and therefore did not treat it as controlling here. The present decree was found to be closer to the decree in Jogemaya Dassi than to that in Chundra Nath Dey. |
Court's Reasoning and Analysis
The Court proceeded in two stages corresponding to the two central issues.
-
Determination whether the decree is a mortgage decree:
- The judges examined the terms of the decree (quoted in translation) which directed realization out of the hypothecated property and, if insufficient, declared personal liability to remain. Both the Chief Justice and Banerjee, J., concluded from the language that the decree was a mortgage decree — i.e., it primarily ordered sale/realisation of mortgaged property, with a subsidiary provision about personal liability if the property were insufficient.
- The Court compared the present decree with the decree in Jogemaya Dassi and found substantial similarity in terms, reinforcing the classification as a mortgage decree rather than a plain money decree.
-
Whether execution is barred by Section 230(3):
- The Court acknowledged that the third paragraph of Section 230 applies to "a decree for the payment of money" and raises the question whether a mortgage decree (or the portion authorizing sale of mortgaged property) falls within that description.
- The Court relied upon the reasoning in Ram Charan Bhagat (Allahabad) that a decree for sale of hypothecated property pursuant to a mortgage bond is not a decree for payment of money within Section 230. The Chief Justice expressly concurred in that reasoning.
- It was observed that the Code of Civil Procedure contains provisions (specifically Sections 210, 254, 295 and 322 as referred to in the judgments) that draw distinctions between simple money decrees and decrees that provide other modes of realization, such as sale of mortgaged property. Banerjee, J., emphasized Section 322 and also referred to Sections 254 and 295 to support the statutory distinction which, in his view, places sale-of-mortgaged-property decrees outside the ambit of Section 230(3)'s twelve-year bar.
- The Court distinguished Hart v. Tara Prasanna Mukherji on the ground that in Hart there was an express personal order to pay and authority to realize the decretal sum out of property other than the mortgaged property; those features made Section 295 applicable there, but they are absent (or have been held to be time-barred) in the present matter.
- Because the Courts below had already held that any personal liability portion was time-barred, the only live question was whether the sale/realisation portion (i.e., sale of mortgaged property) was barred; the Court concluded it is not barred by Section 230(3).
- The Court also noted that some observations in Jogemaya Dassi that might favour the appellant were not necessary to the decision in that case and therefore cannot be taken as a controlling or conclusive determination of the present point.
Holding and Implications
Core Ruling: The Court held that the decree in question is a mortgage decree and that the portion of the decree authorising realization by sale of the mortgaged (hypothecated) property is not a "decree for the payment of money" within the meaning of paragraph 3 of Section 230 of the Code of Civil Procedure. Consequently, the order of the Court below was affirmed with respect to confining execution to the sale/realisation of the mortgaged property.
Direct implications for the parties:
- Execution is limited to realization through sale of the mortgaged property; the Courts below were correct to confine execution to that remedy.
- Any portion of the decree that would permit realization from other property or to enforce personal liability of the defendants was held to be time-barred and therefore cannot be executed now.
The opinion bases its result on existing case law (notably Ram Charan Bhagat) and on distinctions drawn by statutory provisions of the Code; it does not purport to create or announce a novel legal rule beyond applying those precedents and statutory distinctions to the facts at hand. The opinion does not discuss broader or sweeping implications beyond the direct effect on execution remedies in this matter.
1. The first question we have to decide is whether the decree in this case is a mortgage decree. That point has not been very seriously argued by the learned Vakil for the appellant, because he virtually admits that he cannot distinguish a recent decision of this Court in the case of Jogemaya Dassi v. Thackomoni Dassi (1896) I.L.R. 24 Cal. 473 from the present case upon that point. In my opinion the decree in this case was a mortgage decree.
2. That being so, the further question arises, whether the plaintiff is now entitled to take any further execution proceedings to obtain the benefit of this decree, the appellant urging that he is debarred from doing so by reason of the third paragraph of Section 230 of the Code of Civil Procedure which says that No subsequent application to execute the same decree shall be granted after the expiration of twelve years from any of the following dates."
3. The decree referred to in that paragraph of the section is admitted to be a " decree for the payment of money," and we therefore have to decide whether the decree, in this case, is a decree " for payment of money " within the meaning of that paragraph of Section 230. The decree was dated 16th May 1884, and the last execution proceedings were on the 14th May 1896, and the present application for execution is dated 30th November 1896, so admittedly a period of twelve years has expired from the date of the decree. The translation of the decree as handed up to me is in these terms: " It is ordered that the suit be decreed ex parte and the sum of Rs. 323 claimed (in the suit)and the costs of this suit Rs. 34-8 as., with interest at 6 per cent. per annum from thisday till the date of realization, plaintiff do get from the hypothecated property. If insufficient, defendant to remain personally liable."
4. This question has been before the Allahabad High Court, and it was there decided in the case of Ram Charan Bhagat v. Sheobarat Rai (1894) I. L. R. 16 All. 418
"that a decree for sale of hypothecated property made in a suit for sale upon a mortgage bond is not a decree for the payment of money within the meaning of section 230 of the code."
5. Looking to the reasoning upon which that decision is based, and having regard to the various sections of the Code of Civil Procedure to which attention is drawn in that judgment, with the object of showing that under certain sections of the Code the term "decree for payment of money" is used in contradistinction to other decrees, I concur in that decision and in the reasoning by which it is supported. This being so, I scarcely think that it is necessary to go through the various sections which have been referred to in the course of the argument, though I may briefly say that Sections 210 and 322 and 254 of the Code indicate to my mind the distinction to which I have referred, that is to say, the distinction drawn in the Code between a decree for the mere payment of money and a decree with other objects, and giving other relief. Reliance is placed by the appellant upon the case of Hart v. Tara Prasanna Mukherji (1885) I.L.R. 11 Cal. 718 decided by this Court, but there, as has been pointed out in the course of the discussion, was a distinct order upon the defendant personally to pay the money. In the present case there is no such order; there is merely that which is tantamount to a declaration that if the property be insufficient, the personal liability is to remain, and I may here remark that in this case as regards any personal liability of the defendants to pay the money, both the Courts below have held that the application is too late, and the execution proceedings decreed are confined to a realisation of the property only.
6. Reliance was placed by the learned Vakil for the appellant upon certain passages in the judgments of Macpherson and Trevelyan, JJ., in the case of Joyemaya Dassi v. Thackomoni Dassi (1896) I. L.R. 24 Cal. 473 to which I have already referred, and for the purpose of showing that in that case those learned Judges held that a mortgage decree, such as the present, was a decree for the payment of money within the meaning of section 230 of the code. I was a party to that decision, and the reliance I placed upon that section is indicated by my observations at p. 487 of the report. Personally I did not in that case express any opinion upon the point which is the subject of discussion before us now, though no doubt there are passages in the judgments of my learned brotherswhich do support the appellant's present contention. But speaking from recollection, and seeing that neither the case in the Allahabad High Court nor the case of Hart v. Tara Prasanna Mukherii (1885) I.L.R. 11 Cal. 718 were cited, and looking to the head note of the case Jogemaya Dassi v Thackomoni Dassi, (1896) I.L.R. 24 Cal. 473, as to the application to that case of Section 230, and to the circumstance that the point was not necessary to the decision, I am not satisfied it was the intention of those learned Judges finally to decide the point. But even if it were, the decision would not avail the appellant here as I notice that in that case there was a decree against the defendant personally for payment. For these reasons, avid, adopting as I do, the reasoning and conclusion of the learned Judges who decided the case in the Allahabad Court, I think that a decree such as this is not a decree for payment of money within the meaning of paragraph 3 of Section 230 of the Code, and consequently that the order of the Court below was right and must be affirmed.
Banerjee, J.
7. I am of the same opinion. Two questions have been raised before us by the learned Vakil for the appellants: first, whether the decree in this case is a mortgage decree, that is a decree ordering sale of the mortgaged property, or whether it is simply a money decree, that is, a decree ordering the payment of money by the defendant; and, second, whether, even if the decree be held to be a mortgage decree, the present application for execution is not barred by Section 230 of the Code of Civil Procedure.
8. As to the first question, having regard to the terms of the decree, I am of opinion that it is a mortgage decree, that is, a decree ordering the sale of the mortgaged property coupled with a decree for the realization of the balance of the mortgage debt, if any, left after the sale of the mortgaged property, out of any other property belonging to the judgment-debtor. The terms of the decree in this case come very much nearer to the terms of the decree in the case of Jogemaya Dassi v. Thackomoni Dassi (1896) I.L.R. 24 Cal. 473 than to the terms of the decree which was the subject of discussion in the case of Chundra Nath Dey v. Burroda Shoondury Ghose (1895) I.L.R. 22 Cal. 813. The last mentioned case is therefore distinguishable from the present; and following the case of Jogemaya Dassi v. Thakomoni Dassi (1896) I.L.R. 24 Cal. 473, I think we must hold that the decree in this case was a mortgage decree.
9. As to the second contention, the Courts below have already held that so much of the decree as authorizes the decree-holder to realise the judgment-debt out of any property of the judgment-debtor other than the mortgaged property is barred under Section 230 of the Code, and the only question now before us is whether that portion of the decree which directs the realization of the mortgaged debt by sale of the mortgaged property is also barred under Section 230. That question ought, in my opinion, to be answered in the negative. Although the first paragraph of Section 230 relates to a decree generally, the third paragraph which contains the rule of limitation now relied upon speaks of an application to execute " a decree for the payment of money or delivery of other property." Can it be said that the decree that is now sought to be executed is one for the payment of money, " or, more strictly speaking, is that portion of the decree made in the suit which is for the payment of money? No doubt, every mortgage decree directs the mortgagor within a certain time fixed by the Court to pay the mortgage debt; and if such payment is not made, the decree directs the sale of the mortgaged property. The decree in this case did not specify any time within which payment was to be made. But we need not consider the question whether that defect vitiates the decree, because it is too late now to raise that question. What the decree-holder is now seeking to execute is only so much of the decree as directs the sale of the mortgaged property; and an application to execute such a decree is not, in my opinion, within the scope of the third paragraph of section 230 of the code. That the Code of Civil Procedure clearly observes a distinction between a simple decree for the payment of money and a decree directing the realization of money by the sale of mortgaged property, will be clear from Section 322 of the Code, and will also be borne out by a reference to Sections 254 and 295. The view I take is fully supported by the case of Ram Charan Bhagat v. Sheoharat Rai (1884) I.L.R. 16 All. 418.
10. As for the case of Hart v. Tara Prasanna Mukherji (1885) I.L.R. 11 Cal. 718 that is clearly distinguishable from the present, because the question that arose there was with reference to the applicability of Section 295 to the decree in that case, and it was held that Section 295 applied, one of the reasons evidently being that the decree in that case not only directed sale of the mortgaged property, but also authorized the realization of the money decreed by sale of property other than the mortgaged property.
11. As for certain observations of two of the learned Judges in the case of Jogemayo v. Thackomoni (1896) I.L.R. 24 Cal. 473 referred to, they have been considered in the judgment just delivered by the learned Chief Justice, and I need say nothing more than this, that those observations, though they may be construed as faveuring to some extent the construction contended for by the learned Vakil for the appellant, are, observations that wore not, necessary for the decision of the case.
Alert