1. We are invited in this appeal to set aside an order of the Court below by which execution has been allowed to proceed on the basis of a decree in a mortgage suit. The decree nisi appears to have been made so far back as the 22nd July, 1896, but no application was made for order absolute till the 80th June, 1906. The order absolute was actually made on the 28th August of that year. Subsequently, the decree-holder took out execution of the decree and the mortgage property was sold. An application was then made by the representatives of the judgment-debtor to set aside the sale; at the same time, they applied also to set aside the decree nisi as well as the order absolute both of which were alleged to have been made ex parte. On the 10th August, 1907, by consent of parties, the application to set aside the decree nisi and the order absolute was withdrawn, but the execution sale was reversed. On the same day, the decree-holder again applied for execution of the decree, but this proceeding was subsequently abandoned. On the 7th September, 1908, the present application for execution was made. On the 11th November following, the judgment-debtor preferred objection under 244 of the Code of 1882, one of which was to the effect that the decree had been entirely satisfied. In the evidence given in support of this objection, it was sought to be established that after the decree nisi had been made, the decree-holder took possession of the mortgage properties in August 1896, on condition that the judgment debt would be satisfied by the profits realizable by possession for eleven years. This story has been believed by both the Courts below, but they have differed as to the precise mode in which the rights of the parties were affected by this arrangement. The Court of first instance held that the decree-holder was not entitled to execute the decree which had been already satisfied. On appeal, the District Judge has held that as the payments were not certified to the Court under 258 of the Code and as the time within which the judgment-debtor could compel the decree-holder to certify these payments had already expired, it was not competent to the execution Court to take notice of such payments, and that consequently the decree-holder was entitled to proceed with execution. The judgment-debtor has now appealed to this Court, and on her behalf, it has been argued that it is open to the judgment-debtor to show under Section 244 of the Civil Procedure Code that the decree had been in reality satisfied. In our opinion, this contention is unsound and cannot be successfully maintained.
2. It will be observed that according to the case made by the judgment-debtor and found to be true by the Courts below on the evidence, the arrangement for satisfaction of the decree from the usufruct of the mortgage property, was made in August, 1896, and in pursuance thereof, the decree-holder continued in possession for the mortgage premises from August 1896 to August 1907. The sums which the mortgagee decree-holder realised from such possession of the mortgaged premises during the first ten years, were received by him before the order absolute was made in 1906. It is obvious that it is not open to the judgment-debtor, so long as the order absolute stands, to contend that these payments were made. As authority for this proposition, it is sufficient to refer to the cases of Hatem Ali Khundkar v. Abdul Gaffur 8 C.W.N. 102 and Benode Lal Pakrashi v. Brajendra Kumar Saha 29 C. 810. In the first of these cases, it was ruled that the Court to which an application is made under 89 of the Transfer of Property Act to make an order absolute, has full power to ascertain what balance of the mortgage-debt is really outstanding at the time of the application and to make the order absolute for the realization of that amount only. This indeed is manifest from the language of the itself, which provides that if such payment, that is to say, the payment of the sum ascertained by the decree nisi is not so made, the plaintiff may apply to the Court for an order absolute for' sale of the mortgaged property. If, therefore, the mortgagee makes an application for an order absolute and the mortgagor has previously made any payments towards satisfaction of the judgment-debt, it is open to him to urge that an order absolute ought not to be passed for the entire sum, or that an order absolute ought to be passed for a smaller sum than what is mentioned as due in the decree nisi. The second case points out that when a decree has once been made, it must be taken to be conclusive between the parties, so that after a decree has been made, neither an agreement that the payment of a certain instalment would not be enforced, alleged to have been made between the parties before the decree, nor a plea of payment of a part of the claim alleged to have been made before the decree, can be of any avail to' the judgment-debtor. In fact, if we were to accede to the contention of the appellant, the result would be that the validity of the order absolute would have to be called in question. If the appellant has any grievance, her remedy is, therefore, clearly by way of an appropriate proceeding to set aside the order absolute. What the precise nature or form of such a proceeding may be, it is not necessary for us to discuss on the present occasion. If it is alleged by the judgment-debtor that the settlement of the 10th August, 1907, was to the effect that the sale should stand reversed and the mortgage-decree should be deemed satisfied by payments obtained by the mortgagee during the eleven years that he was in possession of the mortgaged premises, the order of the 10th August 1907, by which she was allowed to withdraw the application under 108 of the Code of Civil Procedure to set aside the decree nisi as also the order absolute, may have to be vacated. In so far, therefore, as the appellant seeks to obtain the benefit of the sums received by the mortgagee before the order absolute was made, it is clear that she is not entitled to any remedy in the present proceedings.
3. The only other question which requires decision is, whether she is entitled to the benefit of the payments received by the mortgagee after the order absolute was made on the 28th August 1906 and before he abandoned possession in August 1907. The learned Vakil for the appellant has contended that an enquiry into this matter is open to the Court under Section 244 of the Civil Procedure Code, and that 258 has no application, inasmuch as that has not been made applicable to proceedings in mortgage suits by the rules framed by this Court under 104 of the Transfer of Property Act. In support of this proposition, reliance has been placed upon the cases of Harish Chandra Mandal v. Jagabandhu Dutt 7 C.L.J. 581 : 12 C.W.N. 282 : 3 M.L.T. 202, Kedar Nath v. Kali Churn 25 C. 703 : 2 C.W.N. 353, Hatem Ali v. Abdul Gaffur 8 C.W.N. 102 and Mallikarajuna v. Narasinha Rao 24 M. 412. In our opinion, the cases relied upon do not assist the appellant in any way. In the first of these cases, it appears to have been contended that it was not competent to the Court executing a mortgage-decree, which had been made absolute, to take notice of payments alleged to have been made after the date of the order absolute, because 258 is not applicable to proceedings in execution of mortgage-decrees. It was ruled by this Court, however, that it was competent to the execution Court to take notice of these payments under Section 244, if 258 was held inapplicable; as no question of limitation arose, it was unnecessary to decide whether the judgment-debtor should be allowed credit for these payments under 244 or 258 of the Code. In the second case, it was decided by a Full Bench of this Court that 310A of the Code of Civil Procedure, had no application sales in execution of mortgage-decrees. That, of course, is not an authority directly in favour of the contention of the appellant; and it may be observed that in the case of Dakshina Mohan Roy v. Basumati Debi 4 C.W.N. 474, the decision of the Full Bench was explained and its operation was restricted to the question of the applicability of 310A to sales in execution of mortgage decrees. It was further pointed out in this case that 104 of the Transfer of Property Act is an enabling, and the rules made by the High Court under the provisions of that do not limit the applicability of the provisions of the Code of Civil Procedure as regards sales held in execution of mortgage decrees. The third and fourth cases are clearly distinguishable. In each of these cases, the question raised was, whether 258 was applicable when an attempt was made by the defendant in a mortgage suit to prove that the sum determined by the decree nisi had been satisfied in part by payment made before the order absolute. It was ruled that 258 had no application to a proceeding of this character. This, indeed, becomes obvious when we remember, that a proceeding for an order absolute is not a proceeding in execution, Akikunnissa v. Roop Lal 25 C. 133, and consequently 258 cannot be appropriately applied at that stage of the suit. Bechu v. Bechuram 10 C.L.J. 91 : 1 Ind. Cas. 677, Promatha v. Khetra Mohan 29 C. 651. In our opinion, 258 of the Code of Civil Procedure applies to proceedings in execution of mortgage decrees; in this view, any payment alleged to have been made to the decree-holder and not certified by him within the time prescribed by Article 173A of the Limitation Act of 1877, cannot be considered by the execution Court. This view is supported by the case of Chedumbara Pillai v. Ratna Ammal 3 M. 113 which may be difficult to reconcile with the decision in Rajeswara v. Chath 1 M.L.J. 332.
4. The result, therefore, is that the order of the District Judge must be affirmed and this appeal dismissed, but under the circumstances, without any costs.