1. The plaintiff in this casa brought a suit for specific performance of an agreement to obtain a mortgage bond. The suit ended in a compromise decree under which the plaintiff was to recover the amount from the defendant within six months by sale of the property which was intended to have been mortgaged. The plaintiff in execution sought to recover the amount by sale of the property.
2. It is urged in this second appeal, first, that the charge was created under the compromise decree, and the plaintiff ought to bring a separate suit to enforce the charge, and that the decree in the form in which it was passed could not be executed. Secondly, it is argued that the judgment-debtor had no disposing power as was held in the case of Gyanoba Govindshet Urune v. Shankar Kondappa Shahagadkar (1918) S.A. No. 632 of 1917. decided on October 17 1918, by Shah J. (Unrep.), and therefore, the property could not be attached under Section 60 of the Civil Procedure Code, and sold in execution of the decree.
3. With regard to the first point, it was held in Ambalal v. Narayan : (1919)21BOMLR698 that where a money decree imposing a liability on the defendant to pay a sum of money to the plaintiffs, declared that the plaintiffs had a first charge and a lien on certain immoveable property of the defendant and the plaintiff applied in execution proceedings for sale of the property charged, the plaintiff had a 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. A similar view was taken in Ramaswami Naidu v. Subbaraya Tevar : (1925)49MLJ490 . In such a case it is not necessary that a final decree should be passed, for Order XXXIV, Rule 5, of the Civil Procedure Code, does not apply to an award decree or to a compromise decree if it is clear from the decree, that the sale was ordered and it was in itself a final decree: see Nripendranath Chaitarji v. Jhumak Mandar I.L.R. (1923) Pat. 221 ; Hemendra Lal Singh Deo v. Fakir Chandra Dutta I.L.R(1923). Cal. 650 ; and Sital Singh v. Baijnath Prasad I.L.R. (1922) All. 668 .
4. With regard to the second point, the defendant was a party to the decree and it must be considered that the defendant agreed to create a charge on the property. A person creating a charge or a mortgage is estopped from saying that he is not entitled to create the charge or mortgage on the property. On behalf of the appellant reliance is placed on two cases, Diwali v. Apaji Ganesh I.L.R(1886) . 10 Bom. 342 and Basangowda v. Irgowdatti I.L.R.(1922) 47 Bom. 597. The facts of those cases were quite different from those in the present one where a person creating the charge is a party to the decree. The defendant having agreed to create a charge by the decree, cannot turn round and in execution deny that the property was not liable to be sold in execution of the decree to which he consented.
5. It is not necessary at this stage to consider the extent of the right, title and interest of the judgment-debtor. If the property is sold in execution, the executing Court should not sell the property, but only the right, title and interest of the judgment-debtor, so that the auction-purchaser may consider his position before purchasing the property.
6. On these grounds we think that the view of the lower appellate Court is correct and this appeal must be dismissed with costs.
7. I agree. On the first objection clearly nothing solid can be urged. The point is concluded by the decisions in Ambalal v. Narayana : (1919)21BOMLR698 ; Hemendra Lal Singh Deo v. Fakir Chandra Dutta I.L.R(1923) . Cal. 650; and Nripendranaih Chattarji v. Jhumak Mandar I.L.R.(1923) Pat 221.
8. The second contention is that since the appellant inherited the property under a will which has been judicially interpreted by this Court as restricting his interest in it to his lifetime, he had do attachable and saleable interest in it within the meaning of Section 60 of the Civil Procedure Code. Mr. Bakhale has relied upon the decisions in Diwali v. Apaji Ganesh I.L.R(1886) . 10 Bom. 342 and Basangowda v. Jrgowdatti I.L.R(1922) . 47 Bom. 597 . Both those cases related to the property held Hindu widows whose tenure was very restricted, and it was sought to be attached and sold in execution of independent money decrees obtained against them. Here the defendant himself created a charge on his interest in this property, and I agree that he cannot now be heard to contend that he has no attachable interest in it. The facts are clearly quite different from those dealt with in the two cases I have just referred to, and I agree that the decree appealed against must be confirmed and the appeal dismissed with costs.