Authored By : Francis Maclean, Banerjee

Francis Maclean, C.J.

1. The first question we have to decide is whether thedecree in this case is a mortgage decree. That point has not been veryseriously argued by the learned Vakil for the appellant, because he virtuallyadmits that he cannot distinguish a recent decision of this Court in the caseof Jogemaya Dassi v. Thackomoni Dassi I.L.R.(1896) Cal. 473 from the presentcase upon that point. In my opinion the decree in this case was a mortgagedecree.

2. That being so, the further question arises, whether theplaintiff is now entitled to take any further execution proceedings to obtainthe benefit of this decree, the appellant urging that he is debarred from doingso by reason of the third paragraph of Section 230 of the Code of CivilProcedure which says that No subsequent application to execute the same decreeshall be granted after the expiration of twelve years from any of the followingdates."

3. The decree referred to in that paragraph of the sectionis admitted to be a " decree for the payment of money," and wetherefore have to decide whether the decree, in this case, is a decree "for payment of money " within the meaning of that paragraph of Section230. The decree was dated 16th May 1884, and the last execution proceedingswere on the 14th May 1896, and the present application for execution is dated30th November 1896, so admittedly a period of twelve years has expired from thedate of the decree. The translation of the decree as handed up to me is inthese terms: " It is ordered that the suit be decreed ex parte and the sumof Rs. 323 claimed (in the suit)and the costs of this suit Rs. 34-8 as., withinterest at 6 per cent. per annum from this day till the date of realization,plaintiff do get from the hypothecated property. If insufficient, defendant toremain 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: I. L. R. (1894) All. 418 "that a decree for sale ofhypothecated property made in a suit for sale upon a mortgage bond is not adecree for the payment of money within the meaning of Section 230 of theCode."

5. Looking to the reasoning upon which that decision isbased, and having regard to the various sections of the Code of Civil Procedureto which attention is drawn in that judgment, with the object of showing thatunder certain sections of the Code the term "decree for payment ofmoney" is used in contradistinction to other decrees, I concur in thatdecision and in the reasoning by which it is supported. This being so, Iscarcely think that it is necessary to go through the various sections whichhave been referred to in the course of the argument, though I may briefly saythat Sections 210 and 322 and 254 of the Code indicate to my mind the distinctionto which I have referred, that is to say, the distinction drawn in the Codebetween 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 ofHart v. Tara Prasanna Mukherji I.L.R. (1885) Cal. 718 decided by this Court,but there, as has been pointed out in the course of the discussion, was adistinct order upon the defendant personally to pay the money. In the presentcase there is no such order; there is merely that which is tantamount to adeclaration that if the property be insufficient, the personal liability is toremain, and I may here remark that in this case as regards any personalliability of the defendants to pay the money, both the Courts below have heldthat the application is too late, and the execution proceedings decreed areconfined to a realisation of the property only.

6. Reliance was placed by the learned Vakil for theappellant upon certain passages in the judgments of Macpherson and Trevelyan,JJ., in the case of Joyemaya Dassi v. Thackomoni Dassi I. L.R (1896) Cal. 473to which I have already referred, and for the purpose of showing that in thatcase those learned Judges held that a mortgage decree, such as the present, wasa decree for the payment of money within the meaning of Section 230 of theCode. I was a party to that decision, and the reliance I placed upon thatsection is indicated by my observations at p. 487 of the report. Personally Idid not in that case express any opinion upon the point which is the subject ofdiscussion before us now, though no doubt there are passages in the judgmentsof my learned brothers which do support the appellants present contention. Butspeaking from recollection, and seeing that neither the case in the AllahabadHigh Court nor the case of Hart v. Tara Prasanna Mukherii I.L.R. (1885) Cal.718 were cited, and looking to the head note of the case Jogemaya Dassi vThackomoni Dassi I.L.R. (1896) Cal. 473, as to the application to that case ofSection 230, and to the circumstance that the point was not necessary to thedecision, I am not satisfied it was the intention of those learned Judgesfinally to decide the point. But even if it were, the decision would not availthe appellant here as I notice that in that case there was a decree against thedefendant personally for payment. For these reasons, avid, adopting as I do,the reasoning and conclusion of the learned Judges who decided the case in theAllahabad Court, I think that a decree such as this is not a decree for paymentof money within the meaning of paragraph 3 of Section 230 of the Code, andconsequently 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 raisedbefore us by the learned Vakil for the appellants: first, whether the decree inthis case is a mortgage decree, that is a decree ordering sale of the mortgagedproperty, or whether it is simply a money decree, that is, a decree orderingthe payment of money by the defendant; and, second, whether, even if the decreebe held to be a mortgage decree, the present application for execution is notbarred by Section 230 of the Code of Civil Procedure.

8. As to the first question, having regard to the terms ofthe decree, I am of opinion that it is a mortgage decree, that is, a decreeordering the sale of the mortgaged property coupled with a decree for therealization of the balance of the mortgage debt, if any, left after the sale ofthe mortgaged property, out of any other property belonging to thejudgment-debtor. The terms of the decree in this case come very much nearer tothe terms of the decree in the case of Jogemaya Dassi v. Thackomoni DassiI.L.R. (1896) Cal. 473 than to the terms of the decree which was the subject ofdiscussion in the case of Chundra Nath Dey v. Burroda Shoondury Ghose I.L.R.(1895) Cal. 813. The last mentioned case is therefore distinguishable from thepresent; and following the case of Jogemaya Dassi v. Thakomoni Dassi I.L.R.(1896) Cal. 473, I think we must hold that the decree in this case was amortgage decree.

9. As to the second contention, the Courts below havealready held that so much of the decree as authorizes the decree-holder torealise the judgment-debt out of any property of the judgment-debtor other thanthe mortgaged property is barred under Section 230 of the Code, and the onlyquestion now before us is whether that portion of the decree which directs therealization of the mortgaged debt by sale of the mortgaged property is alsobarred under Section 230. That question ought, in my opinion, to be answered inthe negative. Although the first paragraph of Section 230 relates to a decreegenerally, the third paragraph which contains the rule of limitation now reliedupon speaks of an application to execute " a decree for the payment ofmoney or delivery of other property." Can it be said that the decree thatis now sought to be executed is one for the payment of money, " or, morestrictly speaking, is that portion of the decree made in the suit which is forthe payment of money No doubt, every mortgage decree directs the mortgagorwithin a certain time fixed by the Court to pay the mortgage debt; and if suchpayment is not made, the decree directs the sale of the mortgaged property. Thedecree in this case did not specify any time within which payment was to bemade. But we need not consider the question whether that defect vitiates thedecree, because it is too late now to raise that question. What thedecree-holder is now seeking to execute is only so much of the decree asdirects the sale of the mortgaged property; and an application to execute sucha decree is not, in my opinion, within the scope of the third paragraph ofSection 230 of the Code. That the Code of Civil Procedure clearly observes adistinction between a simple decree for the payment of money and a decreedirecting the realization of money by the sale of mortgaged property, will beclear from Section 322 of the Code, and will also be borne out by a referenceto Sections 254 and 295. The view I take is fully supported by the case of RamCharan Bhagat v. Sheoharat Rai I.L.R. (1884) All. 418.

10. As for the case of Hart v. Tara Prasanna MukherjiI.L.R.(1885) Cal. 718 that is clearly distinguishable from the present, becausethe question that arose there was with reference to the applicability ofSection 295 to the decree in that case, and it was held that Section 295applied, one of the reasons evidently being that the decree in that case notonly directed sale of the mortgaged property, but also authorized therealization of the money decreed by sale of property other than the mortgagedproperty.

11. As for certain observations of two of the learned Judgesin the case of Jogemayo v. Thackomoni I.L.R. (1896) Cal. 473 referred to, theyhave been considered in the judgment just delivered by the learned ChiefJustice, and I need say nothing more than this, that those observations, thoughthey may be construed as faveuring to some extent the construction contended forby the learned Vakil for the appellant, are, observations that wore not,necessary for the decision of the case.

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Fazil Howladar vs.Krishna Bundhoo Roy (01.12.1897 - CALHC)