1. The only question in this appeal against the judgment of Somasundaram J. in C.C.C.A. No. 23 of 1951 is whether the suit out of which this appeal arises, that is, O.S. No. 1382 of 1949, is not maintainable because of the provisions of Section 47, C. P. C. The facts are not in dispute and may he briefly stated. The plaintiff-respondent is the owner of a plot of land in Muktharunnissa Begum St. Triplicaue, Madras.
Defendants 1 and 2, the appellants before us own and possess the superstructure on the said, land of which they are the tenants holding, under the plaintiffs. The plaintiff filed a suit O.S. No. 1561 of 1941 in the City Civil Court, to eject the defendants-appellants on payment by him of such sum us the Court may fix for the value of the superstructures after deducting therefrom Rs. 81-8-0 being the rent and damages for use and occupation of the said land and future damages.
In the alternative, if the defendants applied for leave to buy the said land ho prayed for directions to defendants to pay into Court within such time such sum as the Court may fix for the value of the said land with interest thereon at 9 per cent per annum from the date of decree till date of payment together with a sum of Rs. 81-8-0 being the rent and damages for use and occupation of the said land and future damages. This suit was eventually concluded by a compromise decree the terms of which are as follows :
"(1) that the value of the suit land measuring (1479 sq. ft is fixed at Rs. 1,479 (Rs. one thousand four hundred and seventy nine only) at Rs. 2,400 per ground,
(2) That credit shall be given for Rs. 370 (Rs. three hundred and seventy only) paid by the defendants 1 and 2 to the plaintiff (the receipt whereof the plaintiff has acknowledged in the said deed of compromise).
(3) that the defendants 1 and 2 shall pay the plaintiff in four equal instalments of three months each (a) the balance of Rs. 1109 (Rs. one thousand and one hundred and nine only) with interest thereon at nine per cent per annum from this day till date of payment, as and for the price of laud set out in the schedule hereunder,
(b) a sum of Rs. 81-8-0 (Rs. eighty one and annas eight only) being the past mesne profits upto 29-11-1941 (date of plaint),
(c) future mesne profits at Rs. 1-3-0 (Re. one and annas three only) a month from the said date of plaint till this day, and
(d) a sum of Rs. 39-2-0 (Rs. thirty nine and annas two only) as and for his costs of this suit as taxed and noted below.
(4) That the payment of the said sum shall be a first charge upon the said land and the second charge upon the house set out hereunder, and that in default of payment as aforesaid, the plaintiff shall be entitled to file sale papers and bring the said properties to sale and the nett proceeds shall be applied towards the payment of the said sums together with further costs, in execution of the decree herein, and that the said plaintiff shall at his option be entitled to elect, to give up the said charge, and in default of payment of the said sums as aforesaid to take steps to value the said superstructure set out hereunder.
(5) That upon payment of the said sums in full the plaintiff shall execute and register a deed of conveyance in respect of the said land in favour of the defendants 1 and 2 at the latter's cost." This decree was passed on 2-10-1942. Admittedly defendants 1 and 2 did not pay the amounts as directed by the decree, Clause (3). The plaintiff instead of resorting to the course indicated in Clause (4) of the decree filed a suit in 1949, O. S. No. 1382 of 1949, for the recovery of a sum of Rs. 2,034-7-3 with interest at 9 per cent per annum from the date of plaint till date of decree. He also prayed that in default of payment the land and the superstructure may be sold and after payment out of the costs of suit and sale, the plaintiff may be paid the balance due to him for principal and interest.
In paragraph 10 of the plaint the plaintiff stated that at the request of defendants 1 and 2 the plaintiff neither exercised his option to give up the said charge nor executed the said decree and therefore he was entitled to enforce the said charge on the properties against the defendants in the suit. It may be incidentally mentioned that he did not even offer to execute a conveyance of the land in favour of the defendants on payment of the sum decreed.
The defendants inter alia pleaded that the plaintiff had misconceived his remedy inasmuch as he ought to have executed the compromise decree obtained by him in the prior suit. The defendants; further submitted that as the plaintiff had failed to execute the decree within the period allowed by the law of limitation, he had lost his remedy under the said decree and he could not now try to enforce the terms of the decree by a separate suit. They denied that they ever requested the plaintiff not to execute the decree.
One of the issues framed was whether the suit was not maintainable for the reasons set out in the written statement. On that issue the learned City Civil Judge held that as the decree expressly gave the right to the plaintiff to execute it and bring the property to sale without filing a suit, such a right should have been enforced only by execution and not by a separate suit in accordance with the provisions of Section 47, C.P.C, The plaintiff sought to rely on Order 34, Rules 14 and 15, C.P.C. but the learned Judge held that the said provisions were not applicable as the prior suit was not a suit to enforce a charge antecedent to that suit.
He also overruled the objection that the prior decree only declared a charge in favour of the plaintiff and the plaintiff had therefore to file a suit to enforce that charge. On this finding the suit was liable to be and was dismissed. It is not necessary to refer to the findings of the learned Judge on the other issues. The plaintiff filed an appeal to this Court against the dismissal of his suit, C.C.C.A. No. 23 of 1951. Somasundaram J. who heard the appeal allowed it and directed the passing of a preliminary decree according to the provisions of Order 34, C.P.C. The appeal now before us is from this decision of Somasundaram J.
2. The ground on which the learned Judge held that the suit was maintainable was that Order 34, Rule 14 read with Rule 15, C.P.C. applied to the case and the proper procedure for the plaintiff was to file a suit to enforce the charge and not to bring the properties to sale in execution. The learned Judge after quoting the provision observed that the compromise decree gave the plaintiff a claim for the amount mentioned in the decree and a charge was created under the decree and therefore this was a claim arising under the charge and the provisions of Rule 15 read with Rule 14 of Order 34 applied.
With great respect to the learned Judge we think that he did not pay adequate attention to the express provisions of Order 34, Rule 14. Without any authority it can be held that Order 34, Rule 14, C. P C. can have no application whatever to the facts of the present case. Assuming that Rule 14 will apply to charges also because of Rule 15, the result which follows is that where a charge-holder has obtained a decree for the payment of money in satisfaction of a decree arising under the charge he shall not be entitled to bring the charged property to sale otherwise than by instituting a suit for sale in enforcement of the charge.
Now in this case it is obvious that the plaintiff did not obtain a decree for payment of money in satisfaction of a claim arising under the charge. It was conceded by learned counsel on behalf of the respondent that the charge was created only under the decree. The prior suit filed by the plaintiff was certainly not a suit for the payment of money in satisfaction of a claim arising under any charge. It appears clear to us that neither the language of nor the principle underlying Order 34, Rule 14 has any application to the present case.
It is well established that before Order 34, Rule 14, C.P.C. can be applied there should be a mortgage or a charge existing prior to the suit and not one created by the decree itself or one created by the act of parties subsequent to the decree, vide Official Receiver, Tanjore v. Nagaratna Mudaliar, 49 Mad LJ 643: (AIR 1926 Mad 194). In Ambalal Bapubhai v. Narayan Tatyaba, ILR 43 Rom 631: (AIR 1919 Bom 56), a decree for money directed the defendant to pay a sum of money to the plaintiffs and further declared a first charge and a Hen on certain immoveable properties of the defendant.
In execution of the decree the plaintiffs applied to sell the property charged. It was held that the plaintiffs had the right to bring the property charged to sale in execution proceedings; and that no separate suit for the sale of the property was necessary. Shah J. who delivered the judgment, which prevailed on a difference of opinion between two other learned Judges observed :
"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." Vide A. C. Dastoor v. H. A. Kandawalla, ILR 60 Cal 1467: (AIR 1934 Cal 327).
3. The decision of a Division Bench of the Patna High Court in Raghunandan v. Wajid Ali, AIR 1929 Pat 439 is directly in point. In that case a money decree in terms or a compromise was obtained by the plaintiff against the defendant and the decree further declared that certain property belonging to the defendant should be hypothecated to secure payment under the decree and in default of payment plaintiff would be entitled to sell the property. It was held that the plaintiff had the right to bring the property charged to sale in execution proceedings and no separate mortgage suit for the sale of the property was necessary.
The learned Judges followed the ruling in ILR 43 Bom 631: (AIR 1919 Bom 56). All these decisions amply support what to us appears to be quite clear from the language of Order 34, Rule 14 itself. Where as charge is created by a decree in a suit which has no relation to a charge and indeed could not have because there was no charge prior to the decree in that case, Order 34, Rule 14 cannot have any application. The learned Judge in more than one place has missed the essential condition which is necessary before Order 34, Rule 14 could apply.
The learned Judge relied upon certain decisions which really do not support his conclusion. In Bam Raghubir Lal v. United Refineries (Burma) Ltd., ILR 11 Rang 186: (AIR 133 PC 143) it was held that a decree to enforce by sale a vendor's lien should be in the form of a preliminary decree for sale. Obviously so because the vendor's lien which is in the nature of a charge existed prior to the institution of the suit.
The case in Postimal v. Radhakrishnan Lalchand, ILR 54 All 763: (AIR 1933 All 439) is not relevant because in that case the compromise decree merely declared the right of the decree-holder to a charge and did not provide for the manner in which the charge could be enforced. The ruling in Ramanand v. Jairam, ILR 43 All 170: (AIR 1921 All 369) was cited to the learned Judge but he sought to distinguish it. With great respect to the learned Judge, it appears to us that on principle the decision cannot be distinguished in the way in which the learned Judge has sought to distinguish it.
In his opinion the compromise decree by giving a charge on the property gives rise to a fresh cause of action different from that on which the plaintiff filed the suit. The learned Judge apparently thinks that Section 47, C.P.C. will not be a bar because though the compromise decree may give the plaintiff a right to execute the decree and obtain the relief sought by him, the right of suit is not taken away.
The learned Judge evidently overlooked the fact that if the matter relates to the execution, discharge and satisfaction of a decree, such a matter shall be decided in execution and not in a separate suit. It is not correct to assume that a person may have both the remedies of execution and separate suit.
4. There can be no doubt that what the plaintiff is now seeking to do is to file a suit for a relief which he should have obtained in execution but the right to which he has lost by his own inaction by lapse of time. He cannot certainly be permitted to do so.
5. We are clearly of opinion that the decision of Somasundaram J. cannot be sustained. The appeal is therefore allowed with costs and the decree of the trial Judge dismissing the suit restored.