Norris and Gordon, JJ.
1. The Subordinate Judge's judgment is as follows: 'The decree passed by the High Court on the 29th of May 1893 for Rs. 1,68,122-15-0 against Ranee Aubhoyessury; Dabee has been sent to this Court for execution under Section 223 of the Civil Procedure Code. Execution has been taken out for Rs. 31,077, which amount represents the sum due on account of instalments and interest up to date after deducting sums paid. The judgment-debtor is represented by Counsel and so is the judgment-creditor. The judgment-debtor has objected to an execution order on the ground that the consent decree in the High Court created a charge on the estate of the judgment-debtor, and that a charge having thus been created, the judgment-creditor is precluded from proceeding to execution, but is bound to file a fresh suit under Section 67 of the Transfer of Property Act (IV of 1882). In fact Counsel urges that the judgment-creditor is in the same position since the consent decree was passed that a mortgagee occupied under the Transfer of Property Act. Counsel quoted in support of his plea the following rulings : Murgayya v. Anantha I L.R. 14 Mad. 74, Vigneswara v. Bapayya I.L.R. 16 Mad. 436, Jadub Lall Shaw Chowdhry v. Madhub Lall Shaw Chowdhry I.L.R. 21 Cal. 34 and Azim-Ullah v. Najm-Un-Nissa I.L.R. 16 All. 415. All those rulings referred to mortgagees and mortgages, and in none of them is there anything to support what is urged, viz., that a consent decree is a mortgage. One of these rulings, Viz., Azim Ullah v. Najm-Un-Nissa I.L.R. 16 All. 415 seems to the Court to be distinctly against Counsel's plea, in that the judgment lays down that a suit under Section 67 is a suit that can be brought by no person who is not a mortgagee of property. The Counsel for the judgment-creditor has referred the Court to various rulings, the general purport of which is that this Court is not competent to decide such a question as is now before it, viz., as to whether the judgment-creditor should have brought a suit under Section 67 of the Transfer of Property Act or not. Counsel urges that the Court has to act only in a ministerial capacity, and is not competent to deal with this question. It would appear that what is urged by Counsel is correct, and that the Court is confined to execution and to matter arising out of actual proceedings in execution. It is admitted by Counsel for the judgment-debtor that this point, as to whether the judgment-creditor is precluded from proceeding to execution under the consent decree, has already arisen in the High Court. This being so, it seems particularly clear that this Court, apart from other reasons already given, should reject the objection. The result is that execution shall issue according to the prayer of the judgment-creditor.'
2. Mr. Hill did not endeavour to support that part of the Subordinate Judge's order, in which he held that his functions were purely ministerial, and that he had no authority to adjudicate upon defendant's objection. Sir G. Evans contended that under Sections 99 and 100 of the Transfer of Property Act no order for the sale of the properties could be made, until the plaintiff had instituted a suit under Section 67. Mr. Hill contended that the consent decree had no higher operation than an agreement between the parties, and that upon a true construction thereof the Court ought to hold that the defendant agreed to the sale of the properties set forth in the schedule in default of payment of the instalments.
3. We are of opinion that Sir G. Evans' contention must prevail.
4. The decree gave the plaintiff a charge on the defendant's immoveable property, and all the provisions of the Transfer of Property Act as to a mortgagee instituting a suit for the sale of the mortgaged property applied to the plaintiff. One of the provisions of the Act as to a mortgagee instituting a suit is contained in Section 99, which provides that 'where a mortgagee in execution of a decree for the satisfaction of any claim whether arising under the mortgage or mot attaches the mortgaged property he shall not be entitled to bring such property to sale, otherwise than by instituting a suit under Section 67.'
5. Unless the construction of the decree is such as Mr. Hill contends for, it is clear that the plaintiff cannot sell the properties without bringing a suit.
6. We do not think the decree, which, no doubt, is nothing higher than an agreement between the parties, can be construed as Mr. Hill suggests.
7. If the decree had said that in default of payment in Calcutta of the said sums, &c;, the same shall immediately become due and realizable by execution by the attachment and sale of the properties set forth in the schedule, there might have been some force in the argument.
8. As the decree stands, the plaintiff can realize the instalments by execution by sale and attachment of any property of the defendant's. But if he wishes to sell and attach the properties charged, he must bring a suit.
9. The appeal must be allowed; no order need be made in the rule; we make no order as to costs.