1. I have felt some hesitation in adopting the liberal construction of the decree before us for which the respondent contends, because he has already on one occasion executed it by attachment inconsistently with its alleged mortgage character and is now after great delay contending for that character in order to evade the bar of limitation, to which, considered as an ordinary money-decree, it would be subject.
2. In the cases cited for the respondent, Anna Pillai v. Thangathammal 20 M.k 78 and Lal Behary Singh v. Habibur Rahman 166 C.W.N. 8 the mortgage character of decrees which were not in formal conformity with the requirements of the Transfer of Property Act, was relied on by judgment-debtors and the former was statedly decided with reference to the novelty of the provisions in the Transfer of Property Act as to the form of decrees. But in Fazil Howladar v. Krishna Bundhoo Roy 22 C.W.N. 118 the mortgage character of the decree was relied on by the decree-holder and effect was given to it; and Jogemaya Dassi v. Thackomoni Dassi 24 C.k 473 in which the nature of the decree was considered incidentally, contains nothing adverse to the right of the decree-holder as such to take advantage of its mortgage character although he had, as he has done in the case before us, already proceeded by attachment. As regards respondent's attachment it was in fact of the properties, on which the decree-debt was secured and ended in their sale without objection from the appellants; and it has not been shown that any plea of estoppel or res judicata as to the nature of the decree can be founded on it. Though the present application is made under Order XXXIV, Rule 6, of the Code of Civil Procedure, almost eight years after the decree was passed, it is within three years of the sale of the secured property in 1912. In these circumstances I feel justified in following the authorities cited and in dismissing the appeal against appellate order with costs.
Sadasiva aiyar, J.
3. The questions arising for decision in this appeal are as follows:
(1) Was the decree of the 23rd June 1896 in favour of the respondent a mortgage-decree for sale of the properties of the 2nd defendant which properties the plaintiffs prayed in their plaint should he sold for the recovery of the sum of Rs. 500 interest and costs claimed in the plaint in the suit?
(2) If the above first question is answered in the affirmative did the decree-holders lose their legal right to obtain a supplemental personal decree for the balance against the 2nd defendant, (the balance due under the decree after crediting the sums realized by the sale of the mortgaged properties by reason of the decree-holders having had the mortgaged properties attached before bringing them to sale in execution?
4. As regards the first question, the decree of 1896 has, no doubt, been drawn up very irregularly. Having regard, however, to the remedy claimed in the plaint in the suit (of 894) and having regard to the judgment in that suit of 1894 which I have perused, I have no reasonable doubt that the 2nd defendant's properties which were offered as security by the said defendant to the plaintiff and which were detailed in the schedule attached to the plaint of 1894, were intended by the decree in the suit to be sold in execution of that decree and that the decree should be construed as a decree for such sale. See Ramasami Naik v. Ramasami Chetti 17 M.L.J. 201 and Magniram v. Mehdi Hoosein Khan 8 C.W.N. 30 as to the construction of decrees. In the case of Anna Pillai v. Thangathammal 20 M.k 78 a decree very similar in terms, was construed as a mortgage-decree, for sale. No doubt, that decree was passed in November 1882 soon after the Transfer of Property Act came into force. But a similar decree passed in 1896 (the year of the decree under construction in this case) was again construed by the Calcutta High Court in Lai Behary Singh v. Habibur Rahman 3 C.W.N. 8 as a decree for sale. I would, therefore, agree with the lower Courts as regards the construction of the decree in question.
5. Coming to the second point, the decree-holders were, no doubt, entitled to bring the mortgaged properties to sale in execution of the decree without an attachment. The decree-holders, however, had the properties attached through Court in execution before they brought them to sale. Having regard to the erroneous practice which went on in many of the mofussil Courts for several years after the Transfer of Property Act came into force, of having even mortgaged properties attached in execution of a decree for sale, I do not think that the decree-holders conduct should be construed as an admission on their part that the decree was not a mortgage-decree for sale but only a money-decree. The terms of the execution petition which prayed for the attachment are not before us. Even taking their above conduct as an admission of the decree-holders, the said admission is not conclusive against them as an estoppel, it not being alleged or shown that the 2nd defendant and his legal representatives were misled or injured in any way by the said unnecessary proceedings of the decree-holders.
6. In the result, I would also dismiss the appeal with costs.