Authored By : Arthur Page, J.F. Graham

Arthur Page, J.

1. This is an appeal from an order of the learnedSubordinate Judge of Cachar allowing an objection to an application by theAppellant for leave to issue execution by selling certain property belonging tothe judgment-debtors. On the 16th of September 1915 the Respondents mortgagedthe property in suit to the Appellant under a registered deed of mortgage uponthe following terms. The principal sum secured by the mortgage was Rs. 800"and the right, title and interest to and possession "of themortgaged property" passed under the deed of mortgage to the Appellant.The mortgagor was to have three years within which to pay off the principal sumand redeem the mortgaged property. There was no provision for the payment ofinterest, but it is apparent from the terms of the mortgage deed that theAppellant was to enjoy and possess the land in lieu of interest. By a kabuliyatexecuted on the same date, which recited the deed of mortgage and that themortgagors were desirous of cultivating the land, the mortgaged property waslet to the mortgagors for the period within which the mortgagors were entitledto redeem the mortgaged property at an annual rental of Rs. 160. Upon thefailure of the mortgagors to pay the rent clue under the lease themortgagee-landlord brought a suit to recover the arrears of rent, and obtaineda decree. For the purpose of obtaining execution of the decree themortgagee-landlord applied for leave to issue execution. The mortgagor-tenantsfiled an objection to the sale of the mortgaged property under Section 47 ofthe Code of Civil Procedure upon the ground that in substance the decree whichthe mortgagee-landlord sought to execute was "a decree for the payment ofmoney in satisfaction of "a claim arising under the mortgage within OrderXXXIV, Rule 14 and, therefore, that the mortgagee-landlord was not entitled tobring the mortgaged property to sale otherwise than by instituting a suit forsale in enforcement of the mortgage ". The question which falls fordetermination is whether this contention of the Respondents is sound or not. Inmy opinion, upon a perusal of the mortgage deed and the kabulial it is clearthat the two documents formed part of the mortgage transaction, and, to adoptthe language of Lord Sinha in the case of Panaganti Ramarayanimgar v. Maharajaof Veukatagiri (1926) 31 C.W.N. 670, 675 the two deeds should be read togetheras they form parts "of one transaction, the lease being in the nature of"machinery for the purpose of realizing the interest "due on themortgage. It follows that the objection preferred by the Respondents to thesale of the properties in suit in execution of the rent decree must prevailand, in my opinion, the appeal should be dismissed with costs.

J.F. Graham, J.

2. I agree.

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Mahomed Yakub Miah Majumdarvs. Namar Ali (16.06.1927 -CALHC)