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Maharaja of Benares Vs. Lalji Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1912)ILR34All636
AppellantMaharaja of Benares
RespondentLalji Singh and ors.
Excerpt:
civil procedure code (1882), section 230 - execution of decree--decree upon compromise against lessees, and on their failure to pay against the property of the surety--execution against the lessees after lapse of twelve years. - - if the decree-holder failed to realize the amount of his debt in this way from the lessees, then, he was to be entitled to bring the property which the surety had mortgaged to sale. it is argued, however, that because the decree directs that if the decree-holder has failed to realize the amount of his decree against the first three judgment-debtors, he can bring the property of the fourth judgment-debtor to sale, therefore this decree is not a decree for payment of money but must be regarded as a mortgage decree......lessees only. it was an application to execute the decree not as a mortgage-decree but as a simple money decree. section 230 of act xiv of 1882 provides that where an application to execute a decree for the payment of money or the delivery of other property has been made under this section and granted, no subsequent application to execute the same shall be granted after the expiration of twelve years from, inter alia, the date of the decree or the date upon which payment of money was ordered by the decree. it has been conceded here that if the decree can be treated as a simple money decree, then it was barred by limitation by virtue of the provisions of section 230, more than twelve years having elapsed from the date of default in payment of the instalments. it is argued, however, that.....
Judgment:

Richards, C.J., and Banerji, J.

1. A suit was brought against certain ' lessees and their surety. The suit resulted in a compromise decree which provided that, in the first instance, the lessees should pay the amount of the decree by instalments and that the decree should be capable of execution against them. If the decree-holder failed to realize the amount of his debt in this way from the lessees, then, he was to be entitled to bring the property which the surety had mortgaged to sale. The decree was granted in May, 1897. The present application for execution was made on the 5th of June, 1910, that is to say, more than twelve years after the granting of the decree. The application was made against the lessees only. It was an application to execute the decree not as a mortgage-decree but as a simple money decree. Section 230 of Act XIV of 1882 provides that where an application to execute a decree for the payment of money or the delivery of other property has been made under this Section and granted, no subsequent application to execute the same shall be granted after the expiration of twelve years from, inter alia, the date of the decree or the date upon which payment of money was ordered by the decree. It has been conceded here that if the decree can be treated as a simple money decree, then it was barred by limitation by virtue of the provisions of Section 230, more than twelve years having elapsed from the date of default in payment of the instalments. It is argued, however, that because the decree directs that if the decree-holder has failed to realize the amount of his decree against the first three judgment-debtors, he can bring the property of the fourth judgment-debtor to sale, therefore this decree is not a decree for payment of money but must be regarded as a mortgage decree. It has no doubt been held by this Court that Section 230 does not apply to a mortgage decree, but in our opinion, the compromise decree in the present case was a simple money decree as against the first three defendants, and only became a mortgage decree against the fourth defendant after default was made. It was a conditional decree for the sale of his property. We have already pointed out that it was being executed as a simple money decree, and that it could never have been executed against the first three defendants as anything else except a simple money decree. It comes within the very words of Section 230, Clause (iii). The case of Pahalwan Singh v. Narain Das (1900) I.L.R. 22 All 401 has been referred to. In that case the compromise decree was against a single defendant. It only differed from an ordinary mortgage decree under Section 88 of the Transfer of Property Act by substituting certain instalments for the usual six months allowed for payment of the mortgage money. The application to execute such decree was an application to execute a mortgage decree by sale of the mortgaged property. Therefore, it is quite clear that that case has no application to the present case. In our opinion the decree appealed against was correct, and this appeal should be dismissed. We accordingly dismiss the appeal with costs.


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