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Macnaghten Vs. Surja Prossad - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.302
AppellantMacnaghten
RespondentSurja Prossad
Cases Referred and Ram Charan Bhagat v. Sheobarat Rai
Excerpt:
civil procedure code (act xiv of 1882),section 273 - mortgage-decree whether decree for money. - .....lalji lal against sadik, as he desired. the subordinate judge is of opinion that this decree is a money decree within the meaning of section 273 of the code; and he refers in support of his view to the case of ashruf ali chowdhry v. net lal sahu 20 c. 682.3. the present appeal is by mr. macnaghten, impugning the correctness of the order of the court below.4. the case referred to by the subordinate judge in support of the position that he has taken has been distinctly overruled by subsequent decision of a full bench of this court in the case of kedar nath raut v. kali churn ram 25 c. 703 : 2 c.w.n. 353. it is, however, fair to the subordinate judge to say that the decision of the full bench was pronounced subsequent to the date of his order. section 273 of the code of civil procedure, or.....
Judgment:

1. The respondent before us, Surja Prasad, obtained a decree for money against one Lalji Lal. The latter had obtained a decree upon a mortgage against one Sadik Ali on the 12th February 1886. Surja Prasad, in execution of his decree, obtained, in the first instance, an attachment of Lalji Lal's decree against Sadik Ali, and subsequently applied to the Court that he might be substituted in place of Lalji Lal as judgment-creditor, and allowed to execute that decree. This application was opposed by one Mr. Macnaghten, who, it would appear, has purchased a portion of the mortgaged premises in execution of some other decree of his against Sadik Ali, and his objection was upon the ground that the application of Surja Prasad, as made, was not authorized by the Code of Civil Procedure.

2. The Court below, having regard to the provisions of Section 273 of the Code of Civil Procedure, has negatived the objection of Mr. Macnaghten, and allowed Surja Prasad to execute the decree obtained by Lalji Lal against Sadik, as he desired. The Subordinate Judge is of opinion that this decree is a money decree within the meaning of Section 273 of the Code; and he refers in support of his view to the case of Ashruf Ali Chowdhry v. Net Lal Sahu 20 C. 682.

3. The present appeal is by Mr. Macnaghten, impugning the correctness of the order of the Court below.

4. The case referred to by the Subordinate Judge in support of the position that he has taken has been distinctly overruled by subsequent decision of a Full Bench of this Court in the case of Kedar Nath Raut v. Kali Churn Ram 25 C. 703 : 2 C.W.N. 353. It is, however, fair to the Subordinate Judge to say that the decision of the Full Bench was pronounced subsequent to the date of his order. Section 273 of the Code of Civil Procedure, or rather Paragraph 2 of that section, to which, the Subordinate Judge refers, speaks of a decree for money passed by some other Court than the Court which passed the decree sought to be executed, and in such a case the holder of the latter decree might, by application to the Court which made it, cause the said decree to be attached, and then apply to the other Court to execute it as if he were the decree-holder himself. In all other cases, namely, cases where the decrees are not decrees for money, the section (para. 3) allows an attachment being taken out against such decrees; but it does not give to the decree-holder of the decree, sought to be executed, any other relief; and the question here arises, whether the decree obtained by Lalji Lal against Sadik Ali is a decree for money within the meaning of Section 273, in respect of which Surja Prasad is entitled to ask that he should be allowed to execute it. We are of opinion that the decree in question could not be regarded as a decree for money within the meaning of that section. The decree was a decree that was obtained under the Transfer of Property Act. Section 67 of that Act prescribes that 'in the absence of a contract to the contrary, the mortgagee has, at any time after the mortgage money has become payable to him, and before a decree has been made for the redemption of the mortgaged property, or the mortgage money has been paid or deposited as hereinafter provided, a right to obtain from the Court an order that the mortgagor shall be absolutely debarred of his rights to redeem the property, or an order that the property be sold.' Section 88 of the same Act provides for the remedy given to the mortgagee in a suit instituted under Section 67, and it says that in such a suit, 'the Court shall pass a decree to the effect mentioned in the first and second paragraphs of Section 86, and also ordering that, in default of the defendant paying as therein mentioned, the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale (after defraying thereout the expenses of the sale) be paid into Court and applied,' as therein provided. And referring to the decree itself, we find that it is a decree simply for the sale of the property mortgaged to the mortgagee. No doubt the decree declares the amount of money payable to the mortgagee, but the relief that is given to the mortgagee, in the event of the said money being not paid within the time allowed, is only an order for sale of the mortgaged property. A mortgage is an interest in immovable property, although it secures thereby the money lent; and in the same way when the mortgagee obtains a decree upon his mortgage, he obtains a relief in respect of the immovable property mortgaged to him. And we may also here refer to Section 99 of the Transfer of Property Act, which prescribes that 'when a mortgagee in execution of a decree for the satisfaction of any claim, whether arisirg under the mortgage or not, attaches the mortgaged property, he shall not be entitled to bring such property to sale otherwise than by instituting a suit under Section 67 and he may institute such suit notwithstanding anything contained in the Code of Civil Procedure, Section 43.' So that a mortgage claim cannot be enforced unless or until a suit is brought, and a decree obtained, in terms of the Transfer of Property Act, and when such a decree is made, all that the mortgagee is, in the first instance, entitled to obtain is the sale of the mortgaged property though no doubt if the mortgaged property is exhausted, he may obtain a decree under Section 90 of the Transfer of Property Act for personal relief against the mortgagor or against some other property of his. The decree with which we are now concerned is not a decree of that character.

5. The Code of Civil Procedure, in various sections, points out the distinction which exists between a money-decree and a decree upon mortgage for sale of immovable property (Sections 210, 254, 295 and 322 and Forms Nos. 127, 128 in the 4th Schedule.)

6. The view that we have just expressed is we think supported by the cases of Fazil Hawladar v. Krishna Bundhoo Roy 25 C. 580 : 2 C.W.N. 118 and Ram Charan Bhagat v. Sheobarat Rai 16 A. 418.

7. Upon these grounds we are of opinion that the decree obtained by Lalji Lal, and which Surja Prasad sought to execute could not be regarded as a decree for money within the meaning of Section 273.

8. The result is that the order of the Court below is set aside, and the application for execution as now claimed disallowed, with costs. Hearing fee five gold mohurs.


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