Skip to content


Venkatagiri Iyer Vs. Sadagopachariar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1904)14MLJ359
AppellantVenkatagiri Iyer
RespondentSadagopachariar and anr.
Cases Referred(Kotagiri Venhata Subbamma Rao v. Vellanki Venhata Rama Rao I.L.R.
Excerpt:
- - 105 of 1902) informing him that an order had been received by him from the mittadars (the mortgagors) that he should remit all the collections made from the mitta to the decree-holder and that he would accordingly do so without fail. 3. until the whole amount of the decree is satisfied according to the agreement mentioned above we shall not interfere with the money collections of the said mittas; we shall act according to plaintiff's wish j and we shall' not either withdraw or cancel the aforesaid agentnama until the whole debt has been satisfied. the district judge endorsed on the petition the following order on the 19th day of december 1888. the agreement proposed is sanctioned. we have mortgaged with possession the following properties to you so that you may enjoy (them) in lieu.....bhashyam aiyangab, j.1. the respondent in appeal against order no. 105 of 1902 who is also the respondent in appeal against order no. 109 of 1902 and the appellant in appeal no. 69 of h900 is the decree-holder in o.s. no. 12 of 1886 which was brought upon a hypothecation bond for es. 3,000 executed in september 1880. the decree was passed on the 22nd november 1887 for rs. 6,000 with interest at 18 per cent, per annum and the amount of the decree was recoverable both personally against the mortgagors and by sale of the mortgaged property subject to a prior mortgage in favour of the 8th defendant in that suit whose suit on his prior mortgage was then pending in o.s. no. 8 of 1881 to which the puisne mortgagee, the plaintiff in o.s. no. 12 of 1886, was no party. o.s. no. 8 of 1881 was.....
Judgment:

Bhashyam Aiyangab, J.

1. The respondent in Appeal Against Order No. 105 of 1902 who is also the respondent in Appeal Against Order No. 109 of 1902 and the appellant in Appeal No. 69 of H900 is the decree-holder in O.S. No. 12 of 1886 which was brought upon a hypothecation bond for Es. 3,000 executed in September 1880. The decree was passed on the 22nd November 1887 for Rs. 6,000 with interest at 18 per cent, per annum and the amount of the decree was recoverable both personally against the mortgagors and by sale of the mortgaged property subject to a prior mortgage in favour of the 8th defendant in that suit whose suit on his prior mortgage was then pending in O.S. No. 8 of 1881 to which the puisne mortgagee, the plaintiff in O.S. No. 12 of 1886, was no party. O.S. No. 8 of 1881 was compromised and the decree in the terms of the compromise was passed on the 80th day of September 1890 for the sum of Rs. 68,300 which was to be recoverable subject to the conditions therein provided by sale of the mortgaged properties. The mortgaged properties were brought to sale in execution of the decree in O.S. No. 8 of 1881 and purchased by the plaintiff therein whose purchase was confirmed on the 3rd day of October 1896. He applied for possession under Section 318, Civil Procedure Code on the 2nd day of December 1896 and obtained possession on the 19th day of February 1897. The decree-holder in O.S. No. 12 of 1886 relying upon certain agreements entered into betwen him and the mortgagors subsequent to his decree objected under Section 335, Civil Procedure Code to the delivery of the property to the purchaser in execution of the decree in O.S. No. 8 of 1881 claiming that he was entitled to remain in possession of the property by virtue of such agreements which will be immediately referred to. His objection was overruled on the 5th day of January 1898 and in O.S. No. 41 of 1898 he sought to recover possession of the property from the 2nd defendant therein to whom the property had been conveyed by the decree-holder and purchaser in O.S. No. 8 of 1881. The suit having been dismissed by the decree, dated the 13th day of November 1899, he has preferred to this Court Appeal No. 69 of 1900.

2. On the 17th day of December ] 888 the mortgagors--Judgment-debtors in O.S. No. 12 of 18S6, executed a power of attorney (Exhibit IV in A.A.C. No. 105 of 1902) whereby the decree-holder was authorized to receive all the collections of rent made from the mortgaged property (which was a Mitta) by the moniegar of the Mitta and to appropriate the same towards the decree amount after payment of peishcush and establishment charges. It was further stipulated in the power of attorney that the mortgagors were to render all the necessary assistance in the matter of collections being made by the moniegar and that until the decree was liquidated they were not to revoke the power of attorney nor the orders to be issued by them to the rooniegar and the other village officials for carrying out the said arrangement. On the same date, viz., the 17th December 1888, the moniegar wrote to the decree-holder (vide Exhibit XI in A.A.O. No. 105 of 1902) informing him that an order had been received by him from the Mittadars (the mortgagors) that he should remit all the collections made from the Mitta to the decree-holder and that he would accordingly do so without fail.

3. On the same day the judgment-debtors (defendants Nos. 1,2, 4 and 5 in O.S. No. 12 of 1886) presented a petition to the Court under Sections 257 and 305, C.P.C. which runs as follows:

1. Our properties in the said suit are now brought forth for sale. If they are sold away we should incur heavy loss. We have requested the plaintiff in the suit to stay the sale.

2. We have also given an Agentnama to plaintiff enabling him to collect all the moneys due from the undermentioned Mitta villages through the moniegar of those Mittas to pay the peishcush and take the balance in satisfaction of his decree amount.

3. Until the whole amount of the decree is satisfied according to the agreement mentioned above we shall not interfere with the money collections of the said Mittas; nor shall we do anything which would cause loss to plaintiff. In collecting moneys, we shall do all manner of help to plaintiff even pecuniarily and we shall not do either expressly or impliedly, anything which is obstructive, unjust or fraudulent. We shall act according to plaintiff's wish j and we shall' not either withdraw or cancel the aforesaid Agentnama until the Whole debt has been satisfied.

4. In case the plaintiff is not able to realize the said moneys 1 whether from difficulties raised by us or others, or from any other cause in case plaintiff is confronted with obstacles or hindrance deficiencies or damages and in case he is reduced to that pass, we hereby agree to let the plaintiff bring up all the properties named in the decree for sale in satisfaction of the amount decreed with costs, calculating interest on them at 2 per cent, per mensem from the date of the decree to the d|te of realization, independently of any payments that that may have been made.

5. The conditions of this petition should not be supposed either to have superseded the decree or modified it, nor should it be barred by limitation until the whole sum has been paid in the manner named above.

6. We, therefore, pray that the Court will be pleased to give sanction according to the aforesaid Sections , corroborate the aforesaid arrangements and order us to act according to this petition.

4. On the same date, the Judge passed an order staying the sale until the Wednesday following adding that the judgment-creditor should in the meanwhile attach his signature to the petition presented by the defendants. The decree-holder without affixing his signature to the petition already presented by the judgment-debtors presented an independent petition apparently on the 19th day of December 1888 which after referring to the order passed by the Court on the petition presented by the defendants runs as follows:

The plaintiff agrees for the postponement of the sale in the above suit, provided the Court is pleased to sanction and confirm the arrangement and the agreements made with him on the 17th and 18th of this month by the said defendants under Sections 257-A and 305 of the Civil Procedure Code.

5. It will be noted that in this petition the decree-holder refers not only to the power of attorney above referred to which alone was mentioned in the petition of the 17th day of December 188,8 but also to an agreement of the 18th day of December 1888 whiek was entered into subsqtteiit to the petition of the 17th day of December 1888 and the order thereon. The nature and terms of this new agreement were not set forth in the petition nor was it produced before the Judge. The District Judge endorsed on the petition the following order on the 19th day of December 1888.

The agreement proposed is sanctioned. The sale will now be stopped'. The agreement of the 18th day of December 1888 above referred to is a.registered usufructuary mortgage (Exhibit A in Appeal No. 69 of 1900) and the operative part of it runs as follows:

We have mortgaged with possession the following properties to you so that you may enjoy (them) in lieu of interest for Rs. 8,810 which is inclusive of the interest and costs of O.S. No. 12 of 1886 and which is due to you from us. We will not interfere therein untilthe aforesaid debt is paid off in full. We will grant pattas and muchitikas without there being loss to you and we will render every aid in the collection of money. We will get peishcush, &c.paid; through your lessee. We will not subject you to any kind of liability. You shall not be answerable for any kind of loss. We have agreed to pay the aforesaid amount within 5 years. If any loss, obstruction or hindrance or deceit or evil deeds be occasioned by anybody to the aforesaid properties or to any of your rights therein, this shall in no way prevent (you) from recovering at your pleasure the aforesaid amount by means of the several properties which are shown as security and which are mentioned in the aforesaid decree and from recovering from us personally by taking execution for the aforesaid decree amount in accordance with the conditions of the said decree. If we allow the aforesaid properties to be sold by auction sale, we are answerable to pay the (amount of) loss which you may fix therefor. Grant of pattas, receiving muchilikas and conducting attachment proceedings, &c.; shall be attended to by Thammanier, of us. Having mortgaged with possession to you, we have delivered possession of the properties, the particulars whereof are as follows :

6. The decree holder's lessee above referred to in the mortgage deed Exhibit A is the'nroniegar or the rent collector of the Mitta and Exhibit 2IJ dftted'the 18th day of December 1888m Appeal Against Order No. 105 of 1902 is the lease patta, given by the decree-holder to the Moniegar for fasli 1298 reserving a nat rent of Rs. 1,300, the mittadars--the judgment-debtors--standing as sureties for payment of the rent by the lessee with interest thereon at 18 percent, per annum.

7. All the future complications in the case are chiefly due to the sanction which was so irregularly accorded on the 19th day of December 1888 to the alleged agreement and to attempts made to execute the decree as if the same could be varied by the subsequent agreement.On more occasions than one it has been judicially deter-mined in execution proceedings both by the District Courf and by the High Court on appeal that the order of the 19th day of December 1888 can operate only as a sanction accorded to the agreement as embodied in the power of attorney and the petition presented by the judgment-debtors on the 17th day of December 1888 and that the agreement of the 18th day of December 1888 cannot be regarded as one sanctioned by the Court. Such determination has become final. In pursuance of the agreement entered into between the decree-holder and the judgment-debtors subsequent to the decree, the decree-holder appears to have been in some sort of possession of other between December 1888 and January 1893 when at the instance of the judgment-debtors a receiver was appointed by the Court to take possession of the Mitta as the decree-holder failed to pay the peishcush.

8. In A.A.O. No. 105 of 1902, it is urged on behalf of the appellants--judgment-debtors--that the execution of the decree in O.S. No. 12 of 1886 is barred by limitation and also that the decree has beeu satisfied by the rents and profits realized or which ought to have been realized by the decree-holder during the time he was in possession of the Mitta as aforesaid and I now proceed to consider the question arising in this appeal.

9. The first paragraph of Section 257-A, Civil Procedure Court relates to an agreement by which the decree-holder undertakes to give time to his judgment-debtor, for the satisfaction of the judgment debt. The second paragraph relates to an agreement made for the satisfaction of the judgment-debt when such agreement secures to the deeree-holder either directly or indirectly payment of any sum in excess of what may be payai8$ under the decree. In regard to both these agreements the seution enacts that such agreements shall be void unless made with the, sanction of the Court which passed the decree and it is indicated that the Court is to accord its sanction only if it deems that the consideration for such agreement is under the circumstances reasonable and not oppressive or unconscionable. The policy of the section is clear and the provision therein made is really in the nature of a rule of substanr tive law which, howerer, is enacted in the Procedure Code inasmuch as it is connected with execution of decrees and the object is to debar a decree-holder from using the process of Court though lawfully as an instrument of oppression and entering into unconscionable bargains with the judgment-debtor in consideration of his postponing the process of execution or otherwise agreeing for the satisfaction of the decree and it is hard to conceive of a stronger and more appropriate legal expression than the word ' void' to give full effect to such policy. The whole object would be defeated by construing the section as rendering such an agreement (unless it has received the sanction of the Court) 'void ' only for puposes of execution of the decree but efficacious for securing to the decree-holder the benefit of the oppressive or unconscionable bargain if he brings a suit. Such construction of the section not only frustrates the object of the Legislature by importing into the section the words 'for purposes of execution of the decree' which do not exist there but proceeds also upon a misapprehension that the agreement referred to, if sanctioned by the Court, is to be regarded as incorporated into the decree and the decree executed as thus varied or added to. This is entirely opposed to the whole scheme of the Procedure Code and to its express provisions. If the agreement that receives the sanction of the Court is one for the satisfaction of the judgment-debt and payments made in pursuance thereof are certified or recorded as certified under Section 258, Civil Procedure Code, there can be no further proceedings for execution of the decree and the agreement so far as it provides for the payment of any sum in excess of the decree amount can be enforced only by a separate suit and if the agreement which receives) the sanction of the Court be one for giving time for the satisfaction of the judgment-debt under the first paragraph of Section 257-A, Civil Procedure Code the only efficacy' it can have in execution proceedings will be to obtain an ordpar under the concluding portion, of Clause (c) of Section 244, Civil Procedure Code for stay of 'execution. until the expiration of tlie time stipulated in the agreement and if the consideration for such agreement be a promise made by the judgment-debtor to pay interest not provided for by the decree or a higher interest than that provided for by the decree or a certain sum in addition to the amount decreed, the decree-holder cannot seek to realize such interest or additional sum in execution of the decree but can recover the same only by bringing a suit upon the agreement. A reference to Sections 210 and 375A, Civil Procedure Co5e will show that this is the CQrrect view and that it is not competent to the Court which passed the decree to vaVy it or add to it even if both the. parties agree to such variation or addition except in the solitary instance referred to in paragraph 2 of Section 210, Civil Procedure Code, or even without such agreement for the purpose of bringing the decree into conformity with the judgment under Section 206, Civil Procedure Code. The Judicial Committee of the Privy Council strongly animadverted upon a variation of the decree made by the High Court in pursuance of a compromise entered into by the parties after the decree with a view to withdrawing an appeal to His Majesty in Council and held that such variation of the decree must be treated as made ultra vires in determining whether the execution of the decree was or was not barred by the law of limitation (Kotagiri Venhata Subbamma Rao v. Vellanki Venhata Rama Rao I.L.R. 24 M.k 1.

10. An agreement of the kind contemplated by paragraph 2 of Section 257A, Civil Procedure Code, will be perfectly valid as the basis for a suit even if it has not received the sanction of the Court, provided it does not secure to the decree-holder either directly or indirectly payment of any sum in excess of the amount due or to accrue due under the depree. The agreement will operate as a bar to the execution of the decree if it be certified or recorded as certified under the provisions of Section 258, Civil Procedure Code and it can be enforced by a suit. The last paragraph of Section 257A, ?ivil Procedure Code, is significant of the sense in which the word void' is used in the first and second paragraphs (Cf. Section 65 of the Indian Contract Act). It provides that in cases in which the decree-holder evades the provisions of paragraphs 1 and 2 andreceives from the judgment-debtor in pursuance of an agreement which lias' not received the sanction of the Court any sum in excess of the decree amount or any sum not provided for by the decree, either in satisfaction of the judgment-debt or for giving time for the satisfaction of the judgment-debt, the judgment-debtor may apply to the Court for the recovery of such excess payment or for crediting toward the decree amount any sum paid as a consideration for postponing execution. In the case of payment made or received in pursuance of an agreement sanctioned by the Court under paragraph 2 of Section 257A, Civil Procedure Code, such payment can be recognized by the Court executing the'decree oily if it be certified or recorded as certified under Section 258, Civil Procedure Code.

11. Applying the above principles to the execution of the decree in O.S. No. 12 of 1886 and assuming as it must be that the agreement of the J 7th day of December 1888 as embodied in the power of attorney and the petition presented to the Court had been sanctioned by the Court and rightly so, such agreement must be regarded as a conditional agreement falling under paragraph 1 of Section 257A, Civil Procedure Code. Paragraph 3 of the petition provides for the satisfaction of the judgment-debt by entitling the decree-holder to receive from the moniegar all collections made by him from time to time from the Mitta until the decree amount should be liquidated. So far, the agreement does not secure to the decree-holder any sum in excess of the decree amount payable under the decree and is not obnoxious to S257 A, Civil Procedure Code, even if it had not received the sanction of the Court. But it is provided in paragraph 4 that in the event of the decree-holder experiencing any! difficulty, obstacle or hindrance in realizing the rents and profits of the Mitta in the manner contemplated in paragraph 3, the decree-holder is to be at liberty to apply for execution of the decree claiming interest at 24 per cent, instead of at 18 per cent, the rate mentioned in the decree without giving credit to any payment that be may have received through the moniegar in the meanwhile. The effect of this provision in paragraph 4 is to give the judgment-debtor time for the satisfaction of the decree and the consideration for postponement of the execution of the decree until the happening of the contingency mentioned in paragraph 4 must be taken to be the payment of the additional interest of 6 fir cent and the benefit accruing to the decree-holder by his being allowed to appropriate to himself all payments which he may have in the meanwhile received from the moniegar under paragraph.-3. If the arrangement contemplated by paragraph 3 had continued until the liquidation of the decree debt the payments received from the moniegar from time to time would operate only as payments made out of Court and that would be so whether or not'the agreement under which the same was made is one which needed the sanction of the Court under paragraph 2 of Section 257A, Civil Procedure Code. Such payments cannot be recognized by the Qjourt executing the decree unless certified or recorded as certified under Section 258, Civil Procedure Code. But if the decree is sought to be executed under paragrah 4 as it has now been sought to be executed the question of payments received in the meanwhile by the decree-holder from the moniegar becomes irrelevant as the decree-holder is entitled to appropriate such payments to himself without crediting them towards the decree. If however the decree had been fully satisfied under paragraph 3 before the contingency contemplated by paragraph 4 happened, it would be a breach of contract on the part of the decree-holder to apply for execution under paragraph 4, but if nevertheless he does so apply the judgment-debtor cannot resist execution unless within the time prescribed by Article 173A of the Indian Limitation Act he has taken the necessary steps for having such payments recorded as certified under Section 258, Civil Procedure Code. The decree-holder, however, in his present application for execution (E.P. No. 26 of 190J) does deduct from the decree-amount the sum of Es. 3,768-4-9, which he admits as having been realized by him from the rents and profits of the Mitta including two payments made to him under the orders of the Court by the Receiver (vide Exhibits B and C in Appeal No. 69 of 1900) though in his previous application he did not credit the judgment-debtors with that amount.

12. On behalf of the judgment-debtors, it was contended before the District Judge and before us in appeal that the decree should be held to have been satisfied by tao rents and profits actually realized or which ought to have been realized from the Mitta by the decree-holder between December 1888 and January 1893 during which period it is alleged he was in possession as usufructuary mortgagee and this question appears to have been raised by the judgment-debtors as early as 1892 and again in 1898 though on both those occasions the matter appears to have been dropped by reason of their failure to deposit the Commissioner's fee. The District Judge however, has now investigated the matter and come to the conclusion that Ks. 3,343-7-9 represents approximately the amount actually received by the decree-holder but as the decree-holder admits having received Rs. 3,768-4-9 the District Judge adopted that figure. Under the agreement of the 17th day of December 1888, it is clear that the decree-holder cannot be regarded as a usufructuary mortgagee o the Mitta, at the most he is only an assignee of the rents and profits which the moniegar may collect from time to time and he cannot be charged with the liabilities and responsibilities of an usufructuary mortgagee of the Mitta. The matter no doubt has been complicated by the fact that the decree-holder obtained a usufructuary mortgage of the Mitta on the 18th day of December 1888 and acted on the supposition that that also was sanctioned by the Court on the 19th day of December 1888 along with the agreement of the 17th day of Decembor 1888- Such possession therefore as he had of the Mitta until January 1893 was as a matter of fact principally on the strength of the usufructuary mortgage bond which, however, strangely enough, provided that pattas and muchilikas were to be exchanged with the ryots by the mortgagors--the judgment-debtors themselves and not by the mortgagee--the decree-holder and it was also provided therein that the judgment-debtors were to render every aid to the decree-holder in the collection of rents and profits,' The decree-holder was to enjoy the rents and profits in lieu of interest for the decree-amount inclusive of interest and costs and it was stipulated that the amount of the decree should be paid within five years. If the agreement entered into under this usufructuary mortgage secures to the decree-holder payment indirectly of any sum on account of interest in excess of the interest due under the decree, it will be void under paragraph 2 of Section 257A, Civil Procedure Code, as it must be taken not to have been sanctioned by the Court and if any such excess amount has in fact been realized by the decree-holder that will have' to be credited towards the decree amount under the last paragraph of Section 257A, Civil Procedure Code. Bat it lias not been contended and there is nothing to show, that the mortgage deed secures to the decree-holder either directly or indirectly payment of any sum in excess of the sum due or to accrue due under the decree. Even on the assumption that the mortgage deed is not void for want of sanction, I am satisfied for the reasons given by the District Judge and especially in view of the undertaking by thejudgment-debtors to exchange pattas and muchilikas with the royts and to render all assistance to the decree-holder in the collection of rents and profits that the decree-holder cannot be justly charged with anything more than the amount admitted by him and it is, therefore, unnecessary to consideV and determine whether the judgment-debtors can plead satisfaction of the decree in the manner alleged by them and if not whether in view of the 90 days' period of limitation prescribed by article 173 A of the second schedule to the Indian Limitation Act they can be regarded as having set the Court in motion in time to cause the alleged payment to be recorded as certified under the second paragraph of Section 258. Civil Procedure Code. As already observed (both in the agreement of the 17th day of December 1888 and in the mortgage deed of the 18th day of december 1888) it is provided that in the event of the decree-holder experiencing any difficulty, obstacle or hindrance in realizing the rents and profits of the Mitta, he is to be at liberty to apply for execution of the decree without giving credit for the amounts already realized. Though it may be that the decree-holder cannot claim this benefit under the mortgage deed of the 18th day of December 1888 it does not follow that he cannot claim this benefit under the agreement of the 17th day of December 1888 which has been sanctioned by the Court. As however he has in his last execution Petition (No. 26 of 1901) credited the judgment-debtors with this sum no question has been raised as to whether in the events which have happened he could claim the benefit of this sum under paragraph 4 of the petition without crediting it towards the decree amount.

13. The question of limitation which is raised as a bar to the execution of the decree is not dealt with by the District Judge in his judgment, dated the 31st July 19D2 (wrongly described as order) in Execution Petition No. 26 of 1901 now under appeal. Tt would appear from paragraphs 31 and 32 of the judgment that the execution petition lias been finally granted so far as it prays, for the attachment of certain immovable properties of the judgment-debtors though apart from the judgment no formal order to that effect hasi been passed, as it ought to have been. The question of limitation appears to have been decided in favour of the decree-holder by an interlocutory judgment (wrongly styled 'order'),dated the 7th April 1902 passed on Execution Petition No. 26 of 1901. Though a copy of this judgment is not a part of the records sent up to this Court, a certified copy of it has been produced before us at the hearing by the respondent's pleader and though there was no appeal preferred against it by the judgment-debtors, it ought in my opinion to be Regarded simply as the recording of a finding on one of the issues arising in connection with the execution application before passing a final order on the petition after deciding the remaining issues. The appellants, therefore, are not precluded from raising the question of limitation in this appeal which they have now preferred against the final order. The question of limitation has, therefore, now to be decided in the appeal. It will be remembered that the date of the decree in O.S. No. 12 of 1886 is the 22nd November 1887. The first application for execution, E.P. No. 535 of 1888 was presented on the 24th September 1888; it is not denied that that was in accordance with law. The application was granted and the property mortgaged was apparently advertised for sale on the 17th day of December 1888 on which day the sale was adjourned to the 19th and on the latter date it was stopped in pursuance of the arrangement which was sanctioned on that date. The second application was Execution Petition No. 7 of 1890 which was presented on the 20th June 1890 but that was dismissed and rightly dismissed as the relief thereby sought was the recovery from the judgment-debtors of the sum of Rs. 5,000 for an alleged breach by the judgment-debtor of the agreement sanctioned by the Court on the 19th day of December 1888. It is impossible to regard this application as in any sense an application for the execution of the decree made in accordance with law within the meaning of Clause 4 in third column of Article 179 of the second schedule to the Indian Limitation Act. The third application, Execution Petition No. 52 of 1891 was presented on the 7th December 1891 which is more than three years from the date of first application, viz., the 24th September 1888 but within, three years from the 17th December 1888. If the making of aji application under Section 257 A,.Civil Procedure Code, is the taking of some st8p in aid of execution of the decree by obtaining the Court's sanction to an agreement entered into for the satisfaction of the judgment-debt, Execution Petition No. 52 of 1891 would be one made within time in accordance with law. The contention that this application could not be regarded as one made in acfiordance. with law, because the decree-holder claims the decree amount as settled by the mortgage bond, dated the 18th December 1888,on the footing that that was sanctioned by the Court is manifestly untenable; but in my opinion the petition of the 17th December 1888 cannot be regarded as an application made to take some step in aid of the execution of the decree. The application, Execution Petition No. 32 of 1894 was presented on the 7th November 1894 which is within three years from the date of Execution Petition No. 52 of 1891 and the decree-holder therein sought to realize the amount of the decree by executing it personally against the judgment-debtors by attaching under Section 273, Civil Procedure Code., the decree for money in Original Suit No. 11 of 1893 which the judgment-debtors had obtained against a third party for payment of Rs. 10,000. The decree-holder also prayed that he might lie put in possession of the mortgaged properties for being enjoyed in lieu of interest on the decree amount in accordance with the mortgage bond of the 18th December 1888. The Court on the 17th November 1894 issued an order attaching the decree and gave notice to the judgment-debtors in regard to the remaining portion of the application and on the 29th March 1895, the petition was dismissed for default of decree-holder's appearance. This petition must also be regarded as one made for execution of the decree in accordance with law arid the prayer contained in it for attachment of the decree was actually granted though it may be that tha dacree-holder was not entitled to certain other reliefs claimed in the petition. The fifth applcation No. 61 of 1895 was presented on the 28th November 1895 praying among other things for sale of the mortgaged properties. This was dismissed as barred by limitation on the 10th November 1896 (Vide Exhibit IV in Appeal No. 69 of 1900). Against that order an appeal wa8; preferred to the High Court in A.A.O. No. 47 of 1897 and on the 16th February 1898 the order appealed against was reversed and the Execution Petition No. 61 of 1895 was remanded for being dealtwith afresh, even the question of limitation however not having been finally disposed of. Before E.P. No. 61 of 1895 was near on remand the presfetit application for execeution of the decree (E.P. No. 26 of 1901) was presented 'apparently as a continuation of B.P. No. 61 of 1895 with a prayer for certain additional remedies for the execution of the decree. It is, however, impossible to uphold the view of the District Judge as expressed in his finding dated the 7thApril 1902, already referred to that the order passed on the 24th November 1899 on E.P. No. 58 of 1897 presented by the judgment-debtors for recovery of costs awarded to them by the decree in O.S. No. 12 of 1886 in which the SubordinateJudge held that the execution of the decree by the decree-holder was not barred by limitation operates as res judicatain favour of the decree-holder notwithstanding that the Subordinate Judge rightly or wrongly permitted the judgment-debtors to withdraw theirExecution Petition No. 58 of 1897. Under such circumstances the so-called decision of the Subordinate Judge is no more than an expression of his opinion on the question of limitation and such an opinion cannot of course operate as res judicata. I am however of opinion that the orders passed by the District Judge on Civil Miscellaneous Petition No. 164 of 1897,dated the 29th Sepetember 1897, on CM.P. No. 598 of 1897, dated the 5th Jaunary 1898 (vide Exhibits B and 0 in appeal No. 69 of 1900) operate as res judicata in favour of the decree-holder on the question of limitation. Both those orders or, at any rate, the first mentioned of them was passed after giving notice to the judgment-debtors and hearing their VaM. By virtue of those orders the decree-holder recovered from the hands of the Receiver two sums of Rs. 600 and Rs. 468-4-9 in part satisfaction of the decree and those orders became final not having been appealed against. If the execution of the decree had been barred, the decree-holder could not have been entitled to receive payment of the said-amount from the hands of the Receiver towards the satisfaction of the decree. It is, therefore, unnecessary to consider and decide the question of limitation independently oi' these two orders. The appellants have not taken any objection to the rate of interest claimed in the execution petition which is 6 per cent, higher than that provided by the decree or to the amount claimed as payable under the decree. The A.A.O. No. 105 of 1902, therefore, fails and I would dismiss the same with costs.

14. In A.A.O. No. 109 of 1902, the only question raised is whether the assignment of the decree in O.S. No. 11 of 1898 in favour of the appellant by the decree-holder therein who were judgment-debtors in O.S. No. 12 of 1886 will prevail against the attachment of the decree under Section 273, Civil Procedure Code, such attachment having been made in execution o the decree in O.S. No. 12 of 1886 prior to the assignment of the decree in O.S. No. 11 of 1893. As already stated the attachment was made by order of the court, dated the 17th November 1894, passed on B.P. No. 32 of 1894. It is contended that because the execution petition which contained also other prayers was dismissed on the 29th March 1895 for default of the decree-holder's appearance, such dismissal operates in law as withdrawal of the attachment which had already been made and that, therefore, the subsequent assignment of the decree in favor of the appellant is valid as against the attaching creditor. It is not alleged that the notice of attachment has been cancelled or withdrawn and it is difficult to see on what principle it can be held that the attachment was not subsisting at the date of the assignment of the decree. The order of the District Judge is, therefore, right and 1 would dismiss A.A.O. No. 109 of 1902 with costs.

15. A. No. 69 of 1900 is prosecuted only against the 1st and 2nd respondents, it having been already withdrawn on the 4thSeptember 1901 so far as the 3rd and 4th respondents are concerned to whom no notice had been served.From theMemorandum of Appo.il their names will be struck out. The suit out of which this appeal has arisen has already been referred to. It was brought on the footing that the plaintiff is the usufructuary mortgagee of the Mitta by virtue of the agreement embodied in the petition of the 17th day of December 1888 and also by virtue of the registered deed of mortgage dated the 18th day of December 1888 which is marked as Exhibit A in the case. The petition of the 17th day of December 1888 was, however, not exhibited in this suit and 1 think that the omission was intentional it being clear that under that document he cannot be regarded as a usufructuary mortgagee of the Mitta entitled to maintain the suit in ejectment. It is now tendered as additional evidence in the appeal and even if it be admitted it will make no difference whatever in the result and it is therefore rejected.

16. Among the various issues recorded in the case the seventh issue runs as follows :--' is plaintiff debarred from claiming possession by the subsequent application to execute the decree in O.S. No. 12 of 1886.' This issufe is considered by the Subordinate Judge in paragraph 21of this judgment and judging from the reasons given by him which, however, it is difficult to follow it is evident he meant to decide this issue against the defendants though in terms he records a finding on this issue in the affirmative and by implication therfore in favor of the defendants. The arguments in the appeal were in the first instance confined to this issue and as our finding on this issue is fatal to the maintainability of the plaintiff's suit, the appeal has not been argued in regard to the other questions raised in the appeal. It is clear from the mortgage deed Exhibit A, the operative portion of which is above set forth, that the plaintiffs cannot seek the double remedy of executing the decree in O.S. No. 12 of J886 and also of recovering possession of the mortgaged property. Under Exhibit A, the plaintiff--decree holder--has reserved his full right to enforce execution of the decree both personally against the judgment-debtors and also by sale of the mortgaged property if he should incur any loss or experience any obstruction or hindrance in his enjoyment of the Mitta as usufructuary mortgagee in lieu of interest on the decree amount. It may be that even if such loss, hindrance or obstruction takes place, he may instead of enforcing execution of the decree, enforce his right to remain in possession of the mortgaged property undisturbed or recover possession thereof by a suit if necessary, if he be dispossessed before the decree amount is paid to him and in this sense the recovery by way of enforcing the decree by execution would be only a cumulative remedy and would not preclude him from maintaining his position as usufructuary mortgagee instead of falling back upon his right to apply for execution of the decree. Such possession as he had under the mortgage deed was more or less hindered and obstructed from the very beginning and he completely lost it in 1893 when at the instance of the judgment-debtors a Receiver was appointed. Under the terms of the mortgage deed he was entitled to apply for execution of the decree in the events which have happened and he accordingly applied for execution of the decree in Execution Petition No. 32 of 1894, which was partially granted so far as the attachment of the decree in Original Suit No. 11 of 1893 was concerned and in Execution Petition No. 61 of 1895 and Execution Petition No. 26 of 1901 in continuation of the latter. These petitions were presented and substantially granted by the District Court before he brought this suit on the 16th December 1898 and the orders of the District Judge have also this day been confirmed by this Court in A.A.O. Nos. 105 and 109 of 02. It is, therefore, clear that this suit to recover possession as usufructuary mortgagee of the Mitta in question cannot be maintained and the suit ought to have been dismissed at the first hearing on this simple ground. It is, therefore, unnecessary to consider the other issues involved in the case and I would dismiss the appeal with costs.

Benson, J.

17. I concur throughout.


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