1. This appeal arises out of proceedings taken in execution of a decree dated the 25th April 1907. The appellants are the decree-holders and the respondent is the judgment-debtor.
2. It appears that on the 27th April 1899, the respondent mortgaged thirty-seven properties to Krishna Chandra Pal, the predecessor-in-interest of the appellants, as security for a sum of Rs. 22,000, On the same date the respondent executed in favour of the same person another instrument described as a security bond by which the same thirty-seven properties were made security for a sum of Rs. 25,000.
3. Decrees were obtained on both instruments. The decree now under execution is the decree on the security bond. The decree on the mortgage is dated the 26th June 1908.
4. The decree on the security bond has been printed. It is a decree against the respondent personally for the sum of Rs. 55,000 with interest and costs. A declaration is added that the appellants are entitled to a lien over the thirty-seven properties but a decree on the footing of a mortgage is expressly refused. The words are: 'Plaintiffs' lien to the properties mentioned in the security bond is declared, but the plaintiffs cannot get a decree, for the sale of the said properties...as properties mortgaged and...plaintiffs' prayer to the above effect is rejected.' The decree, therefore, while it declares the existence of a lien, is a money decree and can only be executed as such. No suit has been brought on the lien. The decree was put in execution in 1908, with the result that a sum of Rs. 11 was realized. Further attempts were made to execute it in 1910 and 19' 2 but without success.
5. In execution of the mortgage decree the appellants purchased some of the mortgaged properties, viz., Nos. 16 and 17 in 1909 for Rs. 1,000, No. 15 in 1910 for Rs. 24,000 and Nos. 1-6 in 1912 for Rs. 24,300.
6. A fresh application for execution of the decree on the security bond was made on the 11th December 1912. The respondent, by a petition dated the 23rd June 1913, contended inter alia that he was entitled to rateable contribution in respect of the debt due under that decree from the nine properties purchased by the appellant in execution of the mortgage decree and that execution could only proceed for the balance. The appeal is from the judgment of the learned Subordinate Judge in the Court below, dated the 21st February 1914, giving effect to that contention in the following terms: 'the nine properties purchased by the mortgagees should rateably contribute to the debt under the decree obtained on the security bond.' By further orders dated the 28th February and 7th March 1914, he directed that all the thirty-seven properties should be valued by a Commissioner and that the Commissioner should ascertain their present market value, their value at the date of the security bond and their value at the time some of the properties were sold. We may remark incidentally that it was quite unnecessary to direct so many valuations. The practice of the Courts here in to take the valuation at the date of the instrument creating the security. However, proceedings were stayed by an order of this Court after the appeal was filed.
7. At the first hearing the only question argued was whether the respondent was entitled to claim rateable contribution in the execution department or whether such a claim should not be made the subject of a separate suit. When we came, however, to examine the papers, it appeared to us that there was a more substantial question involved. The mode in which execution is now sought is by the sale of the thirty-seven properties over which alien was declared by the decree itself and it seemed to us that the course suggested was within the prohibition enacted in Rule 14 read with Rule 15 of Order XXXV of the Civil Procedure Code. We accordingly had the appeal argued on this point, with the result that we are confirmed in the view that the present proceedings are inherently defective and must prove infructuous.
8. No doubt the objection, though it seems to have been mentioned in paragraph 14 of the petition of objections above referred to was not pressed in the Court below and was not urged on the respondent's behalf in this Court until we drew attention to it. Nevertheless the objection is one of positive law apparent on the face of the proceedings, and it cannot be ignored.
9. The present case is on all fours with the case of Chundra Nath Dey v. Burroda Shoondury Ghose 22 C. 818 : 11 Ind. Dec. (N.S.) 538 which was decided under Section 99 of the Transfer of Property Act. Section 99 has, of course, been repealed and Rule 14 of Order XXXIV which has taken its place is not couched in precisely the same terms. The difference is that while Section 99 spoke of 'any claim, whether arising under the mortgage or not,' Rule 14 is limited to claims arising under the mortgage. But the decree now in question is clearly a decree for the payment of money in satisfaction of a claim arising under' the lien which the decree declares or creates. For the present purpose, therefore, the two provisions are identical and indistinguishable. The decree holders cannot sell the properties charged except under a decree under which the chargee has had the opportunity to redeem the charge within a fixed period. The case we have cited is similar to the oases of Aubhoyessury Dabee v. Gouri Sunkur Panday 22 C. 859 : 11 Ind. Dec. (N.S.) 568 and Matangini Dassee v. Chooneymoney Dassee 23 C. 903 : 11 Ind. Doc. (N.S.) 598 reported in the same volume and so far as we are aware, the correctness of these decisions has never been questioned.
10. We may regret, that the decree holders after confronted by this obstacle but it is clear they can obtain no benefit from the present proceedings. That being so, the controversy which led to the appeal loses all substance and we need express no opinion in regard to it. The decree-holders cannot bring the charged properties to sale in execution of the decree of the 23th April 1907. Their only course is to institute a suit on the lien declared by that decree.
11. The judgment of the 21st February and the order of 28th February and 7th March 1914 are set aside.
12. The case will be remitted to the Court below with the direction that the present application for execution be dismissed.