1. This appeal is directed against an order absolute made on the basis of a consent decree in a mortgage suit.
2. On the 5th April, 1916, the Plaintiffs-Respondents instituted a suit against the defendant-appellant to enforce a mortgage security. On the 2nd February, 1917, a decree was made by consent of parties. The decree stated that the decree-holders would be entitled to receive from the judgment-debtor Rs. 4,000 on account of principal and Rs. 400 on account of costs. The aggregate sum of Rs. 4,400 was to be paid by annual instalments which were specified in the schedule. The decree then proceeded as follows : 'The defendants will pay to the plaintiffs Rs. 4,400 on account of the claim and costs as per instalments mentioned below. If default is made in payment of any one instalment, the plaintiffs will then be entitled to realise the whole amount due for all instalments at one and the same time by taking out execution. The properties mortgaged shall remain charged under the mortgage until the amount due for the last instalment has been paid.' It is not disputed that nothing was paid under the decree. The result was that on the 12th October, 1917, the plaintiffs' decree-holders applied for an order absolute, which was made on the 6th April, 1918. An appeal was thereupon preferred to the District Judge on the assumption that as the decree was for a sum less than Rs. 5,000, the proper forum of appeal was the Court of the District Judge. It subsequently transpired, however, that the value of the suit was more than Rs. 5,000 and that consequently the appeal lay to this Court. The appeal was consequently lodged here and has now been brought up for final disposal.
3. The judgment-debtors have urged in support of the appeal that the remedy of the decree-holder is not by way of execution but by way of a regular suit to enforce the consent decree. In support of this contention, reliance has been placed upon the provision of Rule 14 of Order 34 of the Code of Civil Procedure, 1908, which is in these terms : 'Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage and he may institute such suit notwithstanding anything contained in Order 1, Rule 2.' Reference has also been made to the decisions in Chundranath Dey v. Buroda Sundary Ghose (1895) 22 Cal. 813, Abhoyeswari Debee v. Gouri Sankar Pandey (1895) 22 Cal. 859, Matangini Dassi v. Chooneymoni Dassee (1895) 22 Cal. 903 and Hem Ban v. Behari Gir (1905) 28 All. 58, which all turned upon the construction of Section 99 of the Transfer of Property Act, 1882, and Gobinda Chandra Pal v. Kailash Chundra Pal (1916) 25 C.L.J. 354, and Gobinda Chandra Pal v. Kailash Chandra Pal (1917) 45 Cal. 530 which were decided on the terms of Order 34, Rule 14. We are of opinion that the eases mentioned are distinguishable and that the provision of Order 34, Rule 14 is not applicable to the present case.
4. In each of the cases mentioned, the decree was for money and there was a charge upon the properties for security in respect of the judgment-debt. There was no express provision in the decree, as there is in the present case, that the decree-holder would be entitled to realise his duos by execution of the decree. In the case before us, as already stated, it was expressly provided that if default was made in payment of one instalment, the decree-holders would be entitled to realise the whole amount due for all instalments at one and the same time by taking out execution. There is no reason why a restricted meaning should be placed upon the expression 'taking out the execution.' We cannot accept the contention of the Appellant that this refers merely to taking out execution of the decree as a money decree against properties of the judgment-debtor other than the hypothecated properties. The intention of the parties plainly was that if default was made by the judgment-debtor, the decree-holder would be at liberty to take out execution against the mortgaged properties which were to remain charged until the amount due for the last instalment should be paid. This view is supported by the decisions in Abir Paramanik v. Jahar Mahmud Mondal (1907) 34 Cal. 886 and Ambalal Bapubhai v. Narayana Tatyaba (1919) 43 Bom. 631. The parties in the case before us were obviously anxious to avoid recourse to a fresh suit on the basis of the decree, such as might be necessary in view of the decisions already cited.
5. The only question which remains is whether a decree by consent of this description is or is not operative as between the parties thereto. The answer must obviously be in the affirmative. It. is sufficient to refer to the Full Bench decision in Ashutosh Sikdar v. Beharilal Kirtania (1907) 35 Cal. 61 (F.B.) which was explained in Bechu Singh v. Bicharam Sahu (1909) 10 C.L.J. 91 and shows that Section 89(2) was enacted for the benefit of the litigating parties. It is further clear from Srimati Sudevi v. Sovaram Agarwalla (1906) 10 C.W.N. 306, Bechu Singh v. Bicharam Sahu (1909) 10 C.L.J. 91, Biswa Nath v. Bhagwandin (1911) 44 C.L.J. 648 and Syam Mandal v. Satinath Banerjee (1916) 44 Cal. 954, that when a, consent decree has been made, as was, made in this case, before execution is taken out, an order absolute should he obtained by the decree-holder on notice, so as to allow an opportunity to the judgment-debtor to show cause, if possible, why the decree should not be made final.
6. The result is that this appeal fails and must be dismissed with costs. We assess the hearing fee at three gold mohurs.