Authored By : John Freeman Norris, Hamilton Wincup Gordon

John Freeman Norris and Hamilton Wincup Gordon, JJ.

1. The Subordinate Judges judgment is as follows: "Thedecree passed by the High Court on the 29th of May 1893 for Rs. 1,68,122-15-0against Ranee Aubhoyessury; Dabee has been sent to this Court for executionunder Section 223 of the Civil Procedure Code. Execution has been taken out forRs. 31,077, which amount represents the sum due on account of instalments andinterest up to date after deducting sums paid. The judgment-debtor isrepresented by Counsel and so is the judgment-creditor. The judgment-debtor hasobjected to an execution order on the ground that the consent decree in theHigh Court created a charge on the estate of the judgment-debtor, and that acharge having thus been created, the judgment-creditor is precluded fromproceeding to execution, but is bound to file a fresh suit under Section 67 ofthe Transfer of Property Act (IV of 1882). In fact Counsel urges that thejudgment-creditor is in the same position since the consent decree was passedthat a mortgagee occupied under the Transfer of Property Act. Counsel quoted insupport of his plea the following rulings : Murgayya v. Anantha I L.R. Mad. 74,Vigneswara v. Bapayya I.L.R. Mad. 436, Jadub Lall Shaw Chowdhry v. Madhub LallShaw Chowdhry I.L.R. Cal. 34 and Azim-Ullah v. Najm-Un-Nissa I.L.R. All. 415.All those rulings referred to mortgagees and mortgages, and in none of them isthere anything to support what is urged, viz., that a consent decree is amortgage. One of these rulings, Viz., Azim Ullah v. Najm-Un-Nissa I.L.R. All.415 seems to the Court to be distinctly against Counsels plea, in that thejudgment lays down that a suit under Section 67 is a suit that can be broughtby no person who is not a mortgagee of property. The Counsel for thejudgment-creditor has referred the Court to various rulings, the generalpurport of which is that this Court is not competent to decide such a questionas is now before it, viz., as to whether the judgment-creditor should havebrought a suit under Section 67 of the Transfer of Property Act or not. Counselurges that the Court has to act only in a ministerial capacity, and is notcompetent to deal with this question. It would appear that what is urged byCounsel is correct, and that the Court is confined to execution and to matterarising out of actual proceedings in execution. It is admitted by Counsel forthe judgment-debtor that this point, as to whether the judgment-creditor isprecluded from proceeding to execution under the consent decree, has alreadyarisen in the High Court. This being so, it seems particularly clear that thisCourt, apart from other reasons already given, should reject the objection. Theresult is that execution shall issue according to the prayer of thejudgment-creditor."

2. Mr. Hill did not endeavour to support that part of theSubordinate Judges order, in which he held that his functions were purelyministerial, and that he had no authority to adjudicate upon defendantsobjection. Sir G. Evans contended that under Sections 99 and 100 of theTransfer of Property Act no order for the sale of the properties could be made,until the plaintiff had instituted a suit under Section 67. Mr. Hill contendedthat the consent decree had no higher operation than an agreement between theparties, and that upon a true construction thereof the Court ought to hold thatthe defendant agreed to the sale of the properties set forth in the schedule indefault of payment of the instalments.

3. We are of opinion that Sir G. Evans contention mustprevail.

4. The decree gave the plaintiff a charge on the defendantsImmovable property, and all the provisions of the Transfer of Property Act asto a mortgagee instituting a suit for the sale of the mortgaged propertyapplied to the plaintiff. One of the provisions of the Act as to a mortgageeinstituting a suit is contained in Section 99, which provides that "wherea mortgagee in execution of a decree for the satisfaction of any claim whetherarising under the mortgage or mot attaches the mortgaged property he shall notbe entitled to bring such property to sale, otherwise than by instituting asuit under Section 67."

5. Unless the construction of the decree is such as Mr. Hillcontends for, it is clear that the plaintiff cannot sell the properties withoutbringing a suit.

6. We do not think the decree, which, no doubt, is nothinghigher than an agreement between the parties, can be construed as Mr. Hillsuggests.

7. If the decree had said that in default of payment inCalcutta of the said sums, &c, the same shall immediately become due andrealizable by execution by the attachment and sale of the properties set forthin the schedule, there might have been some force in the argument.

8. As the decree stands, the plaintiff can realize theinstalments by execution by sale and attachment of any property of thedefendants. But if he wishes to sell and attach the properties charged, hemust bring a suit.

9. The appeal must be allowed; no order need be made in therule; we make no order as to costs.

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Gouri Sunkur Pandayvs. Aubhoyessury Dabee(27.05.1895 - CALHC)