Skip to content


Parvatiben Wd/O. Joitaram Sakarchand and anr. Vs. Himatlal Hiralal and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1967)8GLR904
AppellantParvatiben Wd/O. Joitaram Sakarchand and anr.
RespondentHimatlal Hiralal and Co.
Cases ReferredKallawa Shidlingappa v. Parappa
Excerpt:
- - who heard the appeal came to the conclusion that when there is a charge on the property, it cannot be brought to sale unless there is a suit for sale and a decree for sale of the property is passed in such suit but he was of the view that there was nothing to prevent the plaintiffs from selling the property without attachment in execution of the personal decree against the fourth defendant and, therefore, the application for execution by sale of the charged property was well-founded......that in default of payment of the decretal amount the plaintiffs shall be entitled to bring the charged property to sale in execution of the consent decree, the charged property was not liable to be sold without a proper suit being brought for sale of the charged property in enforcement of the charge. this objection raised on behalf of the fourth defendant was negatived by the executing court and the executing court held that the charged property was liable to be sold in execution of the consent decree. the fourth defendant thereupon preferred an appeal in the high court. raju j. who heard the appeal came to the conclusion that when there is a charge on the property, it cannot be brought to sale unless there is a suit for sale and a decree for sale of the property is passed in such.....
Judgment:

P.N. Bhagwati, J.

1. In suit No. 201 of 1954 filed by the plaintiffs against four defendants, a consent decree was passed, the material terms of which as translated in English were as follows: Defendants Nos. 1 and 2 shall pay Rs. 17, 551/- to the plaintiffs with interest thereon at the rate of six per cent per annum from the date of the decree and the immovable property belonging to the fourth defendant and particularly described in paragraph 7 of the consent terms shall stand charged for payment of the decretal amount and furthermore the fourth defendant shall also be personally liable for payment of the decretal amount; the plaintiffs in execution of this decree shall be at liberty to realise the decretal amount from any property of any of defendants Nos. 1, 2 and 4 and the plaintiffs shall have option to proceed against them according to such priority as they choose. The consent decree provided for payment of the decretal amount by certain instalments but it appears that default was made in payment of the instalments and the plaintiffs, therefore, filed an application for execution of the decree by sale of the property of the fourth defendant charged in favour of the plaintiffs under the consent decree. The fourth defendant resisted the application for execution on the ground that there being no express provision in the consent decree that in default of payment of the decretal amount the plaintiffs shall be entitled to bring the charged property to sale in execution of the consent decree, the charged property was not liable to be sold without a proper suit being brought for sale of the charged property in enforcement of the charge. This objection raised on behalf of the fourth defendant was negatived by the executing Court and the executing Court held that the charged property was liable to be sold in execution of the consent decree. The fourth defendant thereupon preferred an appeal in the High Court. Raju J. who heard the appeal came to the conclusion that when there is a charge on the property, it cannot be brought to sale unless there is a suit for sale and a decree for sale of the property is passed in such suit but he was of the view that there was nothing to prevent the plaintiffs from selling the property without attachment in execution of the personal decree against the fourth defendant and, therefore, the application for execution by sale of the charged property was well-founded. The learned Judge accordingly rejected the appeal but he made no order as to costs. The fourth defendant thereupon preferred the present Letters Patent Appeal in this Court.

2. We do not agree with Raju J. that where a charge on immovable property is created for the first time by a decree for payment of the decretal amount, the decreeholder cannot, in the absence of an express provision, proceed to sell the charged property in execution of the decree to realise the charge but if he wants to bring the charged property to sale, he must either bring a suit for sale of the charged property in enforcement of the charge or apply for attachment and sale or sale without attachment of the charged property in execution of the personal decree obtained by him against the judgment-debtor. This point is now concluded by several decisions of the Bombay High Court and it is not possible to take a different view on the point. The first decision to which we may refer is the decision of Shah J. on difference between Heaton and Pratt JJ. in Ambalal Bapubhai v. Narayan Tatyaba (1919) 43 Bom. 631. The facts in that case were that a decree for payment of money directed the defendant to pay a sum of money to the plaintiffs and further declared a first charge and lien on certain immovable properties of the defendant. The defendant having defaulted in payment of the decretal amount, the plaintiffs, in execution of the decree applied for sale of the charged property. The objection taken to the application for execution was the same which has been taken in the present case, namely, that the plaintiffs were not entitled to sell the charged property in execution of the decree but that they were bound to bring a fresh suit for bringing the property to sale. On difference between Heaton and Pratt JJ. the point of difference was referred to a third Judge and Shah J. agreeing with Heaton J. held that the plaintiffs had a right to bring the charged property to sale in execution of the decree and that no separate suit was necessary for bringing the charged property to sale. This view was affirmed by a Division Bench of the Bombay High Court consisting of Beaumont, C J. and Barlee J. in Gurpadappa v. Karveerappa : AIR1934Bom241 and subsequently another Division Bench of the Bombay High Court consisting of Divatia and Sen JJ. also reiterated the same view in Kallawa Shidlingappa v. Parappa (1944)47 Bom. L.R. 821. These decisions are binding upon us but quite apart from the binding authority of these decisions, we are of the view that they lay down the correct law on the point.

3. We have no doubt that where a charge on an immovable property is created for the first time by a decree for payment of the decretal amount, the charged property can be brought to sale in execution of the decree and it is not necessary to bring a fresh suit for sale of the charged property in enforcement of the charge. It is undoubtedly true that the decreeholder can also, as pointed out by Raju J. apply for attachment and sale or sale without attachment of the judgment debtor's interest in the charged property in execution of the personal decree against the judgment-debtor but that would work hardship on the judgment-debtor, for on such an application the charged property would be sold subject to the charge of the decreeholder and such a sale would ordinarily not fetch proper price and would prejudicially affect the judgment-debtor. If the charged property is sold in execution of the decree for the purpose of realising the charge, the charged property would be sold free from the charge and it would be more likely to fetch a proper price than in a case where only the interest of the judgment-debtor in the charged property is sold in execution of the personal decree against him. Raju J. upheld the execution application by treating it as an application for sale without attachment of the charged property in execution of the personal decree against the fourth defendant. But we do not think the approach of the learned Judge was correct. The application for execution by sale of the charged property with a view to realising the charge was maintainable and it was not necessary to regard the application as one made for sale without attachment of the charged property in execution of the personal decree against the fourth defendant. 3. We, therefore, confirm the order of dismissal of the appeal passed by Raju J. though for different reasons. The fourth defendant will pay the costs of the appeal to the plaintiffs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //