1. This is an appeal from an order of the Subordinate Judge of Dacca, dismissing the appellant's application for execution.
2. On the 18th April 1899 the respondent executed a mortgage-bond in favour of the predecessor of the appellant, and on the same day executed a security bond in his favour. The security bond covered thirty-seven properties which were included in the mortgage-bond. In due course decrees were obtained on both bonds. In the decree made in the suit on the security bond on the 25th April 1907, the following words are important, 'this suit be decreed ex parts, that the defendant do pay to the plaintiffs the aforesaid Rs. 55,000 claimed and Rs. 1,832 the cost of this suit, plaintiffs' lien to the properties mentioned in the security bond is declared, but the plaintiffs cannot get a decree for sale of the said properties mentioned in the security bond as properties mortgaged and that the plaintiffs' prayer to the above effect is rejected.' The decree, therefore, was a money decree with a declaration of plaintiffs' lien on the properties.
3. In execution of his decree on the mortgage bond the decree-holder purchased nine of the properties covered by both bonds. We have not been told whether the mortgage decree has been satisfied or not, it is immaterial to the present appeal, but apparently it had not at the date of the present application for execution.
4. A sum of Rs. 11-2-0 only had been recovered on the decree on the security bond prior to the present application for execution, which was filed on the 11th December 1912. In the application the amount due was shown to be Rs. 85,353-10 6 and there was a request for an order for attachment and sale of the properties. The Court ordered attachment of the properties returnable on the 8th February 1913 and on that date ordered notice for settlement of sale proclamation. On the 22nd February the judgment-debtor appeared and asked for time to file objection and time was given till the 1st. March. In the meantime on the 24th February, on the application of the decree-holder, issue of sale proclamation was ordered on the valuation given by the decree-holder, the 9th April being fixed as the date for sale. On the 1st March the judgment-debtor filed his objection. There was, as is usual, an allegation that the application for execution was illegal and not maintainable, but the main objection seems to have been as to the valuation of the properties. This petition of objection was supplemented by another on the 23rd June, in which the judgment-debtor urged that the application could not be entertained as the mortgagee could never sell the equity of redemption---an objection apparently based on the repealed Section 99 of the Transfer of Property Act---and that as some of the properties covered by the bond had already been sold in execution of the mortgage decree there should be a rateable distribution of the debt over all the properties.
5. The last mentioned point was apparently the only point pressed when the objection came to be decided, at least it is the only point touched on in the order of the Subordinate Judge made on the 21st February 1914.
6. This order was followed by the appointment of a Commissioner to value the properties. The matter then came to this Court on appeal by the decree-holders. On the 19th January 1916 a Division Bench held that in view of the provisions of Order XXXIV, Rule 14, the execution could not proceed, and dismissed the application for execution. There was an application for review and on the 19th December last the Court held that as no cross-appeal had been filed she application for execution should not have been dismissed. The appeal was dismissed with this reservation: We express no opinion on any question which may arise as to any proceedings in execution which the applicant may think fit to take.'
7. When the case went back to the Subordinate Judge the decree-holder applied for an order in the presence of the judgment-debtor that Order XXXIV, Rules 14 and 15, had no application. The Subordinate Judge upheld the contention of the judgment-debtor that those rules did apply and dismissed the application for execution. The present appeal is against that decision.
8. Four grounds are urged, (1) that it was no longer open to the judgment-debtor to object to the execution because the order for sale having been passed and not appealed against, it was binding on the parties even though it may have been erroneous; (2) that Rules 14 and 15 of Order XXXIV do not apply, because Rule 15 applies only to the charges specified in Section 100 of the Transfer of Property Act, and in this case the charge being created by judicial order was not such a charge; (3) that the charge being created by judicial order Rule 14 of Order XXXIV in terms bad no application because the decree-holder was not a charge-holder before he got his decree; (4) that the decree-holder had applied for and got an order for sale, therefore, the objection came too late as under Rule 14 the objection must be taken 'before the property is brought to sale.
9. The first point taken is that the matter is res judicata and the case of Mungul Pershad Dichit v. Grija Kant Lahiri 8 C. 51 : 11 C. L. R. 113 : 8 I. A. 123 : 4 Sar. P. C. J. 249 : 4 Ind. Dec. (N. S.) 32 (P. C.) is cited to support the contention. In my opinion the similarity between the present case and the case cited is of the most shadowy character. It is true that the judgment debtor, when his petition of objection was heard, did not argue the question of validity of the proceedings nor raise the question by way of appeal or cross-appeal on the decree-holders' appeal, but there the similarity ends. In the case cited the judgment-debtor was served with a notice under Section 216 of the Code of Civil Procedure. The Court had to decide whether execution was barred and by its order for proceedings to continue impliedly decided that it was not. In the present case the order for attachment was made as a matter of routine on the application for execution. Similarly the order for issue of sale proclamation was made in the absence of the judgment-debtors, though they had appeared in the proceedings. The question of' the validity of the execution proceedings was not at any stage dealt with and decided though raised, possibly because it was not argued. In fact there is not in terms any order for sale or deciding that execution could be enforced by sale, there are only the routine order of attachment and the order which would follow as a matter of course for settlement of the sale proclamation and for the issue of the proclamation. These cannot in my opinion be treated as impliedly deciding that execution could proceed by way of sale as, it is obvious, the Subordinate Judge never considered the question. And when these facts were pointed out to the learned Pleader for the appellant, he urged that the judgment-debtor, having acquiesced in the order and accepted the benefits of orders subsequently passed, could not be allowed to question the original order, in other words, a plea of estoppel, I do not think the decree-holder can raise a plea of estoppel when he must have known that he had himself induced the Court ex parte to pass an order to which he was not entitled.
10. Not only do the principles of res judicata and estoppel not stand in the way of the judgment-debtor's plea, but it would be a startling result if a decree-holder should be able in execution proceedings to get a relief which his decree expressly declares that he shall not have. It is true that what he asked for in his suit and what was refused was a mortgage sale, while His application in execution was for attachment and sale under Order XXI, but the practical result is the same. The decree in effect said that he could not have a sale of the property without a suit under Section 67 of the Transfer of Property Act and he is seeking to avoid the effect of that decree by an order in execution.
11. The next argument addressed to us was that Rules 14 and 15 of Order XXXIV did not apply to this case as the decre-holder's charge was not one within the meaning of Section 100 of the Transfer of Property Act, in that it had not been created either by operation of law or by act of parties, but by judicial order, viz., the decree in the suit. The fallacy in this argument is that the charge is not created by the decree. The decree only declares the existence of the charge, it was in fact created by the act of parties; And the same answer applies to the argument based on the opening words of Order XXXIV, Rule 14 read with Rule 15, namely, that the decree-holder was not a charge-holder at the time that he obtained his decree. In fact he was, though his rights had not previous to the decree obtained judicial recognition.
12. The fourth ground depends on the view that the words bring the property to sale' in Order XXXIV, Rule 14, mean nothing more than obtain an order for sale. In my opinion they include not only all the steps preliminary to the sale, but the sale itself. In fact the view urged on behalf of the appellants would be impossible of application, for objection could not be made before the judgment-debtor got notice and on the appellant's own argument in connection with the first ground it must be taken that the order for sale was made before the order of 8th February, when notice was issued for the purpose of settling the sale proclamation under Order XXI, Rule 66.
13. In my opinion all the grounds urged fail and the appeal should be dismissed with costs. We assess the hearing fee at five gold mohurs
13. I agree.