1. This appeal arises out of proceedings taken in executionof a decree dated the 25th April 1907. The appellants are the decree-holdersand the respondent is the judgment-debtor.

2. It appears that on the 27th April 1899, the respondentmortgaged thirty-seven properties to Krishna Chandra Pal, thepredecessor-in-interest of the appellants, as security for a sum of Rs. 22,000,On the same date the respondent executed in favour of the same person anotherinstrument described as a security bond by which the same thirty-sevenproperties were made security for a sum of Rs. 25,000.

3. Decrees were obtained on both instruments. The decree nowunder execution is the decree on the security bond. The decree on the mortgageis dated the 26th June 1908.

4. The decree on the security bond has been printed. It is adecree against the respondent personally for the sum of Rs. 55,000 withinterest and costs. A declaration is added that the appellants are entitled toa lien over the thirty-seven properties but a decree on the footing of amortgage is expressly refused. The words are: "Plaintiffs lien to the propertiesmentioned in the security bond is declared, but the plaintiffs cannot get adecree, for the sale of the said properties...as properties mortgagedand...plaintiffs prayer to the above effect is rejected." The decree,therefore, while it declares the existence of a lien, is a money decree and canonly be executed as such. No suit has been brought on the lien. The decree wasput in execution in 1908, with the result that a sum of Rs. 11 was realized.Further attempts were made to execute it in 1910 and 19 2 but without success.

5. In execution of the mortgage decree the appellantspurchased some of the mortgaged properties, viz., Nos. 16 and 17 in 1909 forRs. 1,000, No. 15 in 1910 for Rs. 24,000 and Nos. 1-6 in 1912 for Rs. 24,300.

6. A fresh application for execution of the decree on thesecurity bond was made on the 11th December 1912. The respondent, by a petitiondated the 23rd June 1913, contended inter alia that he was entitled to rateablecontribution in respect of the debt due under that decree from the nineproperties purchased by the appellant in execution of the mortgage decree andthat execution could only proceed for the balance. The appeal is from thejudgment of the learned Subordinate Judge in the Court below, dated the 21stFebruary 1914, giving effect to that contention in the following terms:"the nine properties purchased by the mortgagees should rateablycontribute to the debt under the decree obtained on the security bond." Byfurther orders dated the 28th February and 7th March 1914, he directed that allthe thirty-seven properties should be valued by a Commissioner and that theCommissioner should ascertain their present market value, their value at thedate of the security bond and their value at the time some of the properties weresold. We may remark incidentally that it was quite unnecessary to direct somany valuations. The practice of the Courts here in to take the valuation atthe date of the instrument creating the security. However, proceedings werestayed by an order of this Court after the appeal was filed.

7. At the first hearing the only question argued was whetherthe respondent was entitled to claim rateable contribution in the executiondepartment or whether such a claim should not be made the subject of a separatesuit. When we came, however, to examine the papers, it appeared to us thatthere was a more substantial question involved. The mode in which execution isnow sought is by the sale of the thirty-seven properties over which alien wasdeclared by the decree itself and it seemed to us that the course suggested waswithin the prohibition enacted in Rule 14 read with Rule 15 of Order XXXV ofthe Civil Procedure Code. We accordingly had the appeal argued on this point,with the result that we are confirmed in the view that the present proceedingsare inherently defective and must prove infructuous.

8. No doubt the objection, though it seems to have beenmentioned in paragraph 14 of the petition of objections above referred to wasnot pressed in the Court below and was not urged on the respondents behalf inthis Court until we drew attention to it. Nevertheless the objection is one ofpositive law apparent on the face of the proceedings, and it cannot be ignored.

9. The present case is on all fours with the case of ChundraNath Dey v. Burroda Shoondury Ghose 22 C. 818 : 11 Ind. Dec. (N.S.) 538 whichwas decided under Section 99 of the Transfer of Property Act. Section 99 has,of course, been repealed and Rule 14 of Order XXXIV which has taken its placeis not couched in precisely the same terms. The difference is that whileSection 99 spoke of "any claim, whether arising under the mortgage ornot," Rule 14 is limited to claims arising under the mortgage. But thedecree now in question is clearly a decree for the payment of money insatisfaction of a claim arising under" the lien which the decree declaresor creates. For the present purpose, therefore, the two provisions areidentical and indistinguishable. The decree holders cannot sell the propertiescharged except under a decree under which the chargee has had the opportunityto redeem the charge within a fixed period. The case we have cited is similarto the oases of Aubhoyessury Dabee v. Gouri Sunkur Panday 22 C. 859 : 11 Ind.Dec. (N.S.) 568 and Matangini Dassee v. Chooneymoney Dassee 23 C. 903 : 11 Ind.Doc. (N.S.) 598 reported in the same volume and so far as we are aware, thecorrectness of these decisions has never been questioned.

10. We may regret, that the decree holders after confrontedby this obstacle but it is clear they can obtain no benefit from the presentproceedings. That being so, the controversy which led to the appeal loses allsubstance and we need express no opinion in regard to it. The decree-holderscannot bring the charged properties to sale in execution of the decree of the23th April 1907. Their only course is to institute a suit on the lien declaredby that decree.

11. The judgment of the 21st February and the order of 28thFebruary and 7th March 1914 are set aside.

12. The case will be remitted to the Court below with thedirection that the present application for execution be dismissed.

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Gobind Chandra Pal and Ors.vs. Kailash Chandra Pal(19.01.1916 - CALHC)