1. The only question in this appeal is whether a mortgage decree is a decree for payment of money within the meaning of the expression in Order 21, Rule 16, Civil Procedure Code. The appellant is the 6th defendant in O.S. No. 248 of 1917, a suit brought on a mortgage. The 6th defendant bought a portion of hypotheca and the rest of the property was purchased by one Arunachalam Chetty. One Subbarayar obtained a transfer of the mortgage decree and applied to the Court to be recognised as a transferee decree-holder and for execution of the decree. The 6th defendant opposed the application on the ground that Subbarayar was a benamidar for Arunachalam Chetti and that under the 2nd proviso to Order 21, Rule 16 he was not entitled to execute the decree. The District Munsif held that it was not proved that Subbarayar was benamidar for Arunachalam Chetti. The appeal of the 6th defendant was dismissed by the District Judge. He has preferred this appeal and the contention of Mr. Viswanatha Sastri for the appellant is that inasmuch as Arunachalam Chetti purchased a portion of the hypotheca subject to the mortgage, he is a judgment-debtor and the assignment in favour of Subbarayar being benami, for him he is not entitled to execute the decree against a co-defendant.
2. Granting for arguments sake that Subbarayar is a benamidar for Arunachalam Chetti the question is, is Arunachalam Chetti prevented from executing the decree against the 6th defendant? The question is a simple one. Is a mortgage decree, a decree for payment of money within the meaning of the 2nd proviso to Order 21, Rule 16? According to the proviso ' Where a decree for payment of money against two or more persons has been transferred to one of them, it should not be executed against the others.' We are unable to uphold the contention that a mortgage decree is a decree for the payment of money within the meaning of the proviso. A good deal of argument of Mr. Viswanatha Sastri was based upon Abdulla Saheb v. Doctor Oosman Saheb I L R (1904) M. 224 and other cases which Were decided before the passing of the present Civil Procedure Code. Under the present Procedure Code a preliminary decree is drawn up and time is given for redemption and if within the given time, money is not paid, a final decree, or a decree absolute is passed and the mortgaged property is brought to sale and if the proceeds of the sale are not sufficient to pay up the amount of the decree and if the personal remedy is outstanding a decree is given personally against the mortgagor. Till a personal decree is given, it cannot be said that the decree is one for the payment of money.
3. Under the old Civil Procedure Code a mortgage decree directed the payment of money and in default of payment that the property was to be sold. According to Form No. 129 time was given to the defendant to pay the principal and interest and costs within six months and in default of the defendant paying into Court such principal, etc., by the time given it was ordered that the mortgaged property should be sold and it was further provided that in case the sale proceeds of the mortgaged property did not cover the decree amount the judgment-creditor could recover the amount personally or from other property of the mortgagor. Under the old Code, therefore, a mortgage decree could be considered as a decree primarily for the payment of money. Abdulla Saheb v. Doctor Oosman Saheb I L R (1904) M. 224 and the other cases which were decided under the old Code have no application to a mortgage decree passed under the present Code. Even when the old Code was in force, the Calcutta High Court consistently held the view that a mortgage decree was not a decree for money. In Laldhari Singh v. Manager, Court of Wards, Bhapatpura Estate (1911) 14 C.L.J. 639 Mr. Justice Mukerjee after an exhaustive examination of the cases on the point held that a decree for sale of the mortgaged property could not be deemed as a decree for money within the meaning of Section 232 of the Code of 1882. A decree for redemption though it contains a provision for payment of money cannot be said to be a decree for money nor can a foreclosure decree in which a provision is made for the payment of money within the time fixed be a decree for payment of money. Where a decree is oassed for the delivery of a specific moveable property, and in default, to pay a certain sum of money it is not primarily a decree for money.
4. In a mortgage decree the property is to be proceeded against in the first instance and the decree is therefore primarily against the property mortgaged. If a personal remedy is not outstanding the only remedy of the mortgagee decree-holder is to proceed against the property and the mere fact that a personal remedy is outstanding will not convert the mortgage decree into a decree for payment of money within the meaning of proviso to Rule 16 of Order 21. The case Sadagopa Aiyangar v. Sellammal : (1922)43MLJ761 does not help the appellant. In that case Mr. Justice Spencer and Mr. Justice Venkatasubba Rao held, 'the expression 'decree for money against several persons in Order 21, Rule 16' is not restricted, to a personal decree for money against two or more defendants.' The decree directed the defendant to pay the amount out of his family properties, and the learned Judges held 'that the fact that the defendant was directed by the decree to pay the amount out of his family properties does not make the decree any the less a decree for payment of money against him.' If a trustee is directed to pay money or an executor is directed to pay money, though he is not personally liable to pay the amount, it is still a decree for the payment of money.' But that is quite a different thing from a mortgage decree which directs that the mortgaged properties should be sold to discharge the debt.
5. In Section 232 of the Code of 1882 the expression was 'decree for money.' In the present Order 21, Rule 16, the expression is 'decree for the payment of money.' The words 'the payment of' were evidently introduced to make the meaning clear.
6. We have no hesitation in holding that a mortgage decree is not a decree for the payment of money within the meaning of the 2nd proviso to Rule 16 of Order 21.
7. The appeal therefore fails and is dismissed with costs.