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Ambalal Bapubhai Gujarati Vs. Narayan Tatyaba Bhosale - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case Number First Appeal No. 194 of 1917
Judge
Reported in(1919)21BOMLR698; 51Ind.Cas.924
AppellantAmbalal Bapubhai Gujarati
RespondentNarayan Tatyaba Bhosale
Excerpt:
civil procedure code {act v of 1908), o. xxxiv, rule 14--money decree-creating charge on certain immoveable property--execution proceedings--property can be sold in execution--separate suit not necessary, ; a money decree which imposed a liability on the defendant to pay a sum of money to the plaintiffs, also declared that the plaintiffs had a first charge and a lien on certain immoveable property of the defendant* the plaintiffs having applied, in execution proceedings, for sale of the property charged :-- ;by shah j., agreeing with heaton j., (pratt j. dissenting), that the plaintiffs had the right to bring the property charged to sale in execution proceedings, and that it was not necessary to bring a separate suit for the sale of the property. - section 31(4) (since repealed) :[tarun..........prior to the decree, and the claim in the suit did not arise under any charge but was an ordinary money claim. the payment of money in respect of the claim is secured by creating a charge : but the obligation to pay exists apart from the charge and is enforceable. thus rule 14 does not apply; and no separate suit for the sale of the property is necessary as provided by that rule.7. mr. patwardhan for the defendant has relied upon aubhtoyessury dabee v. gouri sunkur panday i.l.r. (1895) cal. 859, hem ban v. bihari gir i.l.r.(1905) 28 all. 58. and gobinda chandra pal v. kailas chandra pal i.l.r.(1917) cal 530. i do not think, however, that these decisions can help him. the decision in aubhoyessury dabee's case is based upon the terms of section 99 of the transfer of property act, which is.....
Judgment:

Shah, J.

1. The words 'where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage,' in Order XXXIV, Rule 14, of the Civil Procedure Code, mean that the decree should relate to the payment of money in satisfaction of a claim arising under the mortgage, i.e., mortgage independent of the decree. It can have no application where the charge or the mortgage is created by the decree and where the direction as to payment of money is in no sense in respect of a claim arising under the charge or the mortgage.

Shah J.

1. In consequence of the difference of opinion between the learned Judges who heard this appeal, the following question has been referred to me under Section 98 of the Code of Civil Procedure :--

What is the correct construction of the decree 1 Does it give the decree holder the right to bring the property charged to sale in execution proceedings

2. The decree in question was passed by consent on the Original Side of this Court in a suit in which the plaintiff claimed to recover a certain sum of money from the defendant on an adjustment. The material terms of the decree are these:--

This Court by and with such consent doth order that the defendant do pay to the plaintiffs the sum of Rs. 35,789-6-11 for debt and interest and the coats of this suit when taxed and noted in the margin hereof and further simple interest at the rate of 6 per cent, per annum upon the amount of the said judgment from the date hereof until payment and this Court with the like consent doth declare that the plaintiffs have a first charge and a lien (on certain immoveable property described) to secure repayment of the amount. of this decree and interest thereon....Any of the parties hereto is at liberty to apply to this Court as there may be occasion.

3. The learned First Class Subordinate Judge of Poona to whoso Court the decree was transferred for execution held that the property could not be sold in execution in the absence of a direction in the decree as to the enforcement of the charge. This view was contested in the appeal by the plaintiffs and it is on this question that there has been a difference of opinion. On a consideration of the terms of the decree I am of opinion that the decree-holder has the right to bring the property charged to sale in execution proceedings.

4. The decree contains a distinct direction that the defendant should pay the sum to the plaintiffs. This gives the plaintiffs the right to attach and sell the property of the judgment-debtor under the Code of Civil Procedure; and in the exercise of this right he can seek to realise the decrial amount or the balance thereof by the sale of the property in question. The declaration in the decree as to the charge on the property in favour of the decree-holder in order to secure repayment of the amount of the decree has the effect of protecting them against any transfer of the property by the judgment-debtor and not of reducing or modifying the right which the plaintiffs have got in virtue of the direction that the defendant should pay the amount. The fact that liberty is reserved to the parties to apply as occasion may arise does not, in my opinion, indicate any other meaning.

5. It is not uncommon in the mufassil in this Presidency to insert such declarations as to charges particularly in decrees awarding future maintenance to Hindu widows: and no instance has been cited at the bar in which the person holding a decree for the payment of future maintenance has been forced to a separate suit in order to secure the sale of the property charged for the realisation of the decrotal amount. I see no reason to think that in a decree passed on the Original Side of this Court the insertion of such a declaration would be intended or ought to have the effect of forcing the plaintiffs to a separate suit or of curtailing their right to bring the property to sale in virtue of the direction to the defendant to pay the amount. It may be that in the present case, if necessary, under the clause reserving liberty to the parties to apply, an express provision directing the sale of the property charged may be added to the decree by an application to the Court which passed the decree. On a construction of the decree, however, I do not think that any such provision is necessary.

6. It is urged on behalf of the defendant that under Rules 14 and 15 of Order XXXIV a separate suit for the sale of the property, as in the case of a mortgage, under Section 67 of the Transfer of Property Act is necessary. Under Rule 15 the provisions contained in Order XXXIV as to sale of mortgaged property would apply to property subject to a charge within the meaning of Section 100 of the Transfer of Property Act so far as may be. Treating the charge under the decree as equivalent to a mortgage for the purpose of this argument, the question is whether Rule 14 would apply to the present case. The rule provides that 'where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order II, Rule 2.' The words 'where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage' mean that the decree should relate to the payment of money in satisfaction of a claim arising under the mortgage, i. e., a mortgage independent of the decree. It can have no application where the charge or the mortgage is created by the decree and where the direction as to payment of money is in no sense in respect of a claim arising under the charge or the mortgage. In the present case there was no charge or mortgage prior to the decree, and the claim in the suit did not arise under any charge but was an ordinary money claim. The payment of money in respect of the claim is secured by creating a charge : but the obligation to pay exists apart from the charge and is enforceable. Thus Rule 14 does not apply; and no separate suit for the sale of the property is necessary as provided by that rule.

7. Mr. Patwardhan for the defendant has relied upon Aubhtoyessury Dabee v. Gouri Sunkur Panday I.L.R. (1895) Cal. 859, Hem Ban v. Bihari Gir I.L.R.(1905) 28 All. 58. and Gobinda Chandra Pal v. Kailas Chandra Pal I.L.R.(1917) Cal 530. I do not think, however, that these decisions can help him. The decision in Aubhoyessury Dabee's case is based upon the terms of Section 99 of the Transfer of Property Act, which is now replaced by Rule 14 of Order XXXIV. The terms of Section 99 differ materially from those of Rule 14. I am not now concerned with the question whether a separate suit would be necessary to bring the property charged to sale in the present case, if Section 99 of the Transfar of Property Act wore still in force : in that event the said decision would no doubt be an authority in favour of the defendant's contention. But it cannot be treated as an authority in support of the view that Rule 14 is applicable to the present case. The second case is distinguishable on the double ground that there was a prior security in that case and that the decision turned upon the provisions of Section 99. In the last case also there was a mortgage prior to the decree. It is significant that in that case the argument as to Rule 14 is met by the fact that the decree-holder was a charge-holder at the date of the decree. In the present case the fact is otherwise.

8. I therefore agree with my brother Heaton in holding that the property charged can be sold in execution.

9. The result is that the order of the lower Court is set aside and the lower Court is directed to proceed with the Darkhast according to law. The defendant to pay the costs of this appeal: other costs to be costs in the Darkhast.


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