Authored By : Jwala Prasad, Reginald Roe

Jwala Prasad, J.

1. This appeal arises out of an order of the Deputy Commissioner of the Sonthal Parganas, dated 10th April 1916, confirming an order of the Subordinate Judge, dated 31st January 1916, directing the execution of a decree obtained by the respondents on the 20th December 1911, and the sale of property in execution thereof. The respondents had brought a suit in the Court of the Subordinate Judge to enforce their claim in respect of money due from the appellants on a hand-note. On 18th November 1911 during the pendency of the suit, the appellants executed a registered mortgage-bond in favour of the respondents, pledging the property now pursued as security for the repayment of the debt. On 20th December 1911 the parties filed a petition of compromise, the terms of which were based upon the terms of this mortgage-bond. It was agreed that a decree be passed in favour of the plaintiffs-respondents against the defendant-appellant for Rs. 4,000, principal and interest. The decretal amount was to be paid by installments set forth in the petition of compromise. The property which has in the present proceedings been advertised for sale was pledged as security for the payment of the installments. Paragraph 4 of the compromise petition recites as follows:--

"Till the realization of the entire decretal amount with costs and interest the defendants have given in security the undermentioned property, for which separate registered bond dated 18th November 1911 has been executed which is filed herewith for the perusal of the Court. We hereby promise that in default of one installment your petitioners shall be bound to pay the entire amount of the decree with costs and interest, etc., till the date of realization. The plaintiffs shall be entitled to realise their dues, on all the installments, firstly, from property given in security and afterwards in case of the property not being sufficient from your petitioners' persons and other properties. But if the first two installments are paid on the dates fixed, then in case of the default in the other kist the plaintiff, will realise that kist alone with interest."

2. On 20th December 1911 the Court passed a decree in favour of the respondents for the sum agreed upon between the parties in terms of the compromise petition. No installment due on the compromise petition was paid and the decree-holders-respondents applied for the execution of the decree for the entire sum due to them by attachment and sale of the property pledged as security in the consent decree. Both the Courts below have allowed the execution to proceed, directing the attachment and sale of the property. The judgment-debtors have appealed to this Court. The sole question is, whether the decree as it stands can be executed and the property pledged in security can be attached and sold in execution of the decree or the respondents should bring a separate suit and obtain a proper mortgage decree.

3. The Courts below have proceeded on the assumption that there was a condition in the decree that the decretal amount was, in case of default, to be realised by attachment and sale of the property in question. I, however, do not find any clear direction either in the compromise petition or in the decree that in default of payment of the installments the decree-holder is entitled in execution of the decree to attach or sell the property in question. Paragraph 4 of the petition of compromise quoted above in extenso will show that the property in question is only offered as a security for the payment of the installments in the terms of the mortgage-bond of 18th November 1911.

4. The parties compromised the suit on the basis of a separate mortgage-bond already executed by the judgment-debtor. The decree-holder cannot proceed against the property unless he brings a proper suit on the basis of the mortgage-bond. The ruling reported as Shyam Sundar Lal v. Bajpai Jainarayan  30 C. 1060 : 7 C.W.N. 914 does not apply to this case, as the decree-holder in that case was not the mortgagee and the security bond for the due performance of the decree was given by the defendant in favour of the Court by its order under section 545 of the then Code of Civil Procedure. The ruling clearly says that "if he (decree-holder) be such a mortgagee, no doubt he cannot sell the properties comprised in the mortgage without obtaining in the first instance a decree under the provisions of section 67 of the Transfer of Property Act." In this case the decree-holder is a mortgagee under the mortgage-bond. The ruling reported as Abhoyessury Debee v. Gouri Sunkur Panday  22 C. 859 : 11 Ind. Dec. (N.S.) 668 clearly applies to this case, as there is no direction in the consent decree or in the compromise petition for the sale of the property. This view is supported by Kissory Lal Chowdhury v. Raja Sewbux Bogla 3 Ind Cas. 999 : 13 C.W.N. 787, where it is observed at page 790* that "if the consent decree had not contained a direction that the property charged should be sold for non-payment, this application would have failed on the authority of Aubhoyessury Debee v. Gouri Sunkur Panday  22 C. 859 : 11 Ind. Dec. (N.S.) 668. Had that decree fallen short of declaring that sale should take place under certain contingencies, it is clear that a separate suit should have been necessary".

5. The respondents are, therefore, not entitled to attach and sell the property in question in execution of the decree and the order of the District Judge is bad and should be set aside.

6. The appeal is allowed with costs.

Reginald Roe, J.

7. I agree. The mortgage being prior to the compromise decree, the debt arises out of the mortgage. Therefore under Order XXXIV, rule 14, the mortgaged property cannot be sold.

8. The plaintiff-respondent must institute a regular suit for the realization of the amount due to him.

9. The appeal is decreed with costs. Hearing fee five (5) gold mohurs.

*Page of 13 C.W.N.--Ed.