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Gurupadappa Mallappa Kalasgond Vs. Basappa Shiddappa Kalagi - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 670 of 1938
Judge
Reported inAIR1940Bom276; (1940)42BOMLR592
AppellantGurupadappa Mallappa Kalasgond
RespondentBasappa Shiddappa Kalagi
DispositionAppeal allowed
Excerpt:
.....54(4) (b).;a suit to enforce a charge is ordinarily treated as one to enforce a mortgage, and the decree passed is in the form of a preliminary decree as prescribed by the code of civil procedure, 1908. under order xxxiv, rule 4, the preliminary decree should contain a declaration that a certain amount is due, and is followed by two alternative directions, viz. (1) that if the amount is paid within six months, the property should be reconveyed, and (2) that if the amount is not paid within six months, the property should be sold by the court. the form prescribed for the preliminary decree contains no direction against the defendant personally to pay the amount.;the plaintiff purchased certain property from the defendant, but failed to pay the balance of the purchase money (rs. 315). in..........possession. the court passed a decree in these terms:-plaintiff should obtain possession of the suit property. we decide that there is a charge according to law of defendant no. 1 for rs. 315 which the plaintiff has to pay to him out of the amount of sale. we order that the plaintiff do. pay to defendant no. 1 rs. 315 within six months from to-day. if the plaintiff fails to pay the monies (within the period mentioned above) as per above order defendant no. 1 should pay court fees on rs. 315 and recover the said amount by the sale of the property in suit.2. after this decree was passed the property was sold to a third party and that transaction is not liable to be challenged or set aside. therefore, with-out taking any further steps, defendant no. 1 filed a darkhast and pro-ceeded to.....
Judgment:

Kania, J.

1. This is a second appeal from the decision of the District Judge at Bijapur. Defendant No. 1 was the vendor and the plaintiff was the purchaser of an immoveable property. The plaintiff failed to pay the balance of the purchase price and brought this suit for possession. The Court passed a decree in these terms:-

Plaintiff should obtain possession of the suit property. We decide that there is a charge according to law of defendant No. 1 for Rs. 315 which the plaintiff has to pay to him out of the amount of sale. We order that the plaintiff do. pay to defendant No. 1 Rs. 315 within six months from to-day. If the plaintiff fails to pay the monies (within the period mentioned above) as per above order defendant No. 1 should pay Court fees on Rs. 315 and recover the said amount by the sale of the property in suit.

2. After this decree was passed the property was sold to a third party and that transaction is not liable to be challenged or set aside. Therefore, with-out taking any further steps, defendant No. 1 filed a darkhast and pro-ceeded to attach another property of the plaintiff. The plaintiff's objection was overruled by the executing Court and the lower appellate Court. The plaintiff's contention is that this decree is a preliminary decree and there is no personal decree for payment against him. The form of this decree appears to have been borrowed from the words used in Baslingawa v. Chinnava 1931 I.L.R. 56 Bom. 556: s.c. 34 Bom. L.R. 427: The decree there passed was in similar terms. On behalf of the appellant it was pointed out that although the decree contained an order to pay, a decree similarly worded and passed in a mortgage suit was construed to be a preliminary mortgage decree only in Janardan v. Krishnaji : (1920)22BOMLR953 . The decree there passed was in these terms (p. 957):-

Defendants should pay Rs. 300 each year to the plaintiff. Plaintiff should bring the same to account in the following way... In this way the defendants should pay the whole sum in instalments by paying Rs. 300 per year to the plaintiff as above until payment of the sum in full. The property in suit should remain in the possession of the defendants. Until payment of the whole mortgage amount the whole of the sum should be a charge on the mortgaged property. In default of the payment of any two instalments, the plaintiff should recover the whole of the amount then due including all the future instalments by sale of the mortgaged property through Court.

3. In discussing the effect of this decree Macleod C.J, stated as follows (p. 957):-

I fail to see how this decree differs in, any respect from an ordinary mortgage decree, which no doubt directs money to be paid by the mortgagor, but also directs that in default of payment in the prescribed manner, or within the prescribed period the mortgaged property may be put up for sale.

4. Heaton J. in a concurring judgment stated as follows (p. 958):. it seems to me that it does not give any right to the decree holder to proceed against any property of the judgment-debtor, except that property on which the judgment debt is made a charge.

5. In my opinion this form of passing a preliminary decree is unwarranted by the Civil Procedure Code. When a suit is filed to enforce a charge, it is treated as one to enforce a mortgage and the decree passed is in the formof a preliminary decree as prescribed by the Code. Under Order XXXIV, Rule 4, the preliminary decree should contain a declaration that a certain amount is due and is followed by two alternative directions, viz. (1) that if the amount is paid within six months, the property should be reconveyed, and (2) that if the amount is not paid within six months, the, property should be sold by the Court. It is to be remembered that according to the form prescribed in the preliminary decree there is no direction against the defendant personally to pay the amount. The words of Macleod C.J. quoted above, which are argued to mean that there is an order for personal payment, do not, in my opinion, bear that meaning. The learned Chief Justice only referred to the alternative form of payment prescribed by Order XXXIV, Rule 4.

6. Turning to the present decree, in the first instance it declares a charge [to which an unpaid vendor is entitled under Section 54 (4)(b) of the Transfer of Property Act]; it then provides that the plaintiff should pay the money within six months from the date of the decree, and then proceeds to direct that in the event of the amount not being paid, defendant No. 1 should pay the Court-fees on Rs. 315 and recover the amount by sale of the property in suit. In terms the decree does not order the plaintiff to pay the amount personally or give a right to defendant No. 1 to recover the amount otherwise than by a sale of the property in suit. To be able to do so a further step under Order XXXIV, Rule 6, is required. That position is supported by the decision in Raghukul Tilak v. Pitam Singh 1930 I.L.R. 52 All 901. Having regard to the very similar terms of the decree passed in Janardan v. Krishnaji, I think that the lower Courts were wrong in considering this decree as a personal decree against the plaintiff and permitting execution on that footing. The Court's duty in the suit was to pass a proper preliminary decree, and the words used in this decree are susceptible of that meaning. There is no reason to strain the meaning and construe the words used here as a personal decree. Having regard to the form suggested in Baslingawa v. Chinnawa and the fact that words used under similar circumstances and on the footing that it was a mortgage decree have been construed to mean that there is no personal decree, the contention of the defendants fails. I therefore think that the decision of the lower appellate Court was wrong. I therefore allow the appeal, set aside the decree of the lower appellate Court, dismiss the darkhast and direct the respondent to pay the costs of this appeal.


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