1. The appellant in this case is the judgment-debtor against whom a decree for specific performance in respect of the execution of a mortgage had been passed, with costs, and the decree provided that the decree-holder should obtain immediate possession of the property to be mortgaged. An appeal having been preferred from that decree, the judgment-debtor applied under Section 545 for the stay of execution. The Court below granted the prayer for the stay of execution, but required the judgment-debtor to furnish security to the amount of Rs. 70,000. Against the last part of the order the present appeal has been preferred by the judgment-debtor.
2. A preliminary objection was taken on behalf of the respondent that no appeal was allowed by law in respect of an order passed under Section 545 of the Code, such order not being appealable under Section 588; and Baboo Rash Behari Ghose for the respondent contended that it was also not appealable under Section 244. There is, however, authority, both of this Court and of the Allahabad High Court, for holding that questions under Section 545 are matters which are appealable under Section 244, they being matters between the parties to a decree, and relating to the execution thereof.
3. We may refer to the cases of Kristomohiney Dossee v. Bama Churn Nag Chowdhry I.L.R. 7 Cal. 733; Luchmeeput Singh v. Sitanath Doss I.L.R. 8 Cal. 477 and Ghazidin v. Fukir Buksh I.L.R. 7 All. 73. The appeal therefore appears to us to be maintainable.
4. We are totally unable to understand on what principle the Court below required the judgment-debtor to deposit the very large sum mentioned in its order. The case of the decree-holder was that, in consideration of the loan advanced by him of Rs. 40,000, he should have a usufructuary mortgage of the estate in question. It does not appear that he paid to the owner of the estate any portion of the Rs. 40,000. All that he did was to pay into the hands of the manager under the Chota Nagpore Encumbered Estates Act the sum of Rs. 7,000, which, of course, accrued to the benefit of the owner. That is all that the plaintiff has hitherto risked. In return for that he obtained n decree for a mortgage for nineteen yetas, and for immediate possession.
5. The order of the Court below appears to contemplate some possible damages to the plaintiff decree-holder by reason of the delay which may occur to him in getting possession of the estate, and those damages have been assessed at Rs. 50,000, while the law costs are put down as Rs. 20,000.
6. The plaintiff decree-holder cannot possibly in this litigation obtain anything as damages. He brought a suit for specific performance in respect of the execution of a mortgage; and he has obtained a decree for that. No question of damages can arise.
7. As to the law costs, namely, Rs. 20,000, neither of the pleaders engaged by the parties before us can explain to what that refers. It is not contended that Rs. 20,000 have been incurred as costs in the present case. The costs of the litigation up to this Court at the most is more than covered by Rs. 7,000. The appellant is willing to deposit security to that amount, and the respondent's pleader cannot make out any good case why the sum should be-in excess of that amount.
8. We therefore modify the order of the lower Court by substituting the sum of Rs. 7,000. The security for the sum of Rs. 7,000 will be put in within one month from the date of the receipt of this order by the Court below.
9. The appellant is entitled to the costs of this appeal.