Abdulla Sahib And Ot... v. Doctor Oosman Sahib ...

JUDGMENT

This is an application to execute the decree in Original Suit No. 23 of 1887 on the file of the District Court of Trichinopoly. The application is opposed on the ground that it is barred under section 230, Civil Procedure Code. The District Judge has hold that the application is not so barred, as it is not a decree for money under section 230, Civil Procedure Code, following the case reported in Katrick Nath Pandey v. Juggernath Ram Marwari(1). He also expresses his opinion that the case in Kommachi Kather v. Pakker(2) is not opposed to the ruling in Katrick Nath Pandey v. Juggernath Ram Marwari.

The contention before os is that this case is governed by the ruling in Kommachi Kother v. Pnkker, which is inconsistent with the decision of the Calcutta High Court, and that the Judge ought to have followed the decision of this Court.

The decree in this case runs as follows:—“The Court doth order and decree that plaintiff do recover the amount sued for, viz., Rs. 4,151-14-0 from defendants Nos. 1 to 4 with costs and subsequent interest on the principal sum, viz., Rs. 3,500 at 6 per cent, per annum from date of plaint, that is, 10th August 1887, to date of realization that, if the amount be not made good within six months from this date, the hypothecated property specified here below shall be sold in satisfaction thereof that for any balance that may be due after sale of the hypothecated property, the other properties of defendants Nos. 1 to 4 shall be sold and that the person of the fourth defendant shall be held liable and that the other defendants shall bear their own costs.”

We are of opinion that this case is on all fours with the decision in Kommachi Kather v. Pakker. The decree, as in that case, directs the defendants to pay the money to the plaintiff and in default the property mortgaged is to be sold and the balance is to be realized from the other properties of the defendants.

That the section then under consideration was 295, Civil procedure Code, makes no difference. The distinction, if any, is in favour of the judgment-debtor. The words in section 230 being “a decree for payment of money”. We must, therefore, follow this decision in preference to Katrick Nath Pandey v. Juggernath Raw Marwari, which expressly dissents from it.

The application dated the 24th March 1903 for the sale of the mortgaged property is thus clearly barred by section 230, Civil Procedure Code, if it is to be treated as an application to execute the decree which is dated the 29th July 1889.

But it is contended that there was an application for attachment which was made within 12 years and that the attachment then made is still subsisting and that this application for sale is merely a continuance of that proceeding as a sale has to be carried out by a Court after the attachment of the property without even any application for the same. This contention cannot be supported. An application for attachment of certain property cannot be treated as an application to execute a decree which, directs the sale of that property. As pointed out in Jogemaya Dassi v. Thackomoni Dassi, the properties attached being mortgaged properties could not be brought to sale under the attachment and the attachment must therefore be treated as ineffective and infructuous. It is only the present application for sale that can be treated as an application to execute the decree and it is made after 12 years.

The appeal must therefore be allowed, the order of the lower Court reversed and the application for sale dismissed with costs.