1. The first question we have to decide is whether the decree in this case is a mortgage decree. That point has not been very seriously argued by the learned Vakil for the appellant, because he virtually admits that he cannot distinguish a recent decision of this Court in the case of Jogemaya Dassi v. Thackomoni Dassi (1896) I.L.R. 24 Cal. 473 from the present case upon that point. In my opinion the decree in this case was a mortgage decree.
2. That being so, the further question arises, whether the plaintiff is now entitled to take any further execution proceedings to obtain the benefit of this decree, the appellant urging that he is debarred from doing so by reason of the third paragraph of Section 230 of the Code of Civil Procedure which says that No subsequent application to execute the same decree shall be granted after the expiration of twelve years from any of the following dates.'
3. The decree referred to in that paragraph of the section is admitted to be a ' decree for the payment of money,' and we therefore have to decide whether the decree, in this case, is a decree ' for payment of money ' within the meaning of that paragraph of Section 230. The decree was dated 16th May 1884, and the last execution proceedings were on the 14th May 1896, and the present application for execution is dated 30th November 1896, so admittedly a period of twelve years has expired from the date of the decree. The translation of the decree as handed up to me is in these terms: ' It is ordered that the suit be decreed ex parte and the sum of Rs. 323 claimed (in the suit)and the costs of this suit Rs. 34-8 as., with interest at 6 per cent. per annum from thisday till the date of realization, plaintiff do get from the hypothecated property. If insufficient, defendant to remain personally liable.'
4. This question has been before the Allahabad High Court, and it was there decided in the case of Ram Charan Bhagat v. Sheobarat Rai (1894) I. L. R. 16 All. 418 'that a decree for sale of hypothecated property made in a suit for sale upon a mortgage bond is not a decree for the payment of money within the meaning of Section 230 of the Code.'
5. Looking to the reasoning upon which that decision is based, and having regard to the various sections of the Code of Civil Procedure to which attention is drawn in that judgment, with the object of showing that under certain sections of the Code the term 'decree for payment of money' is used in contradistinction to other decrees, I concur in that decision and in the reasoning by which it is supported. This being so, I scarcely think that it is necessary to go through the various sections which have been referred to in the course of the argument, though I may briefly say that Sections 210 and 322 and 254 of the Code indicate to my mind the distinction to which I have referred, that is to say, the distinction drawn in the Code between a decree for the mere payment of money and a decree with other objects, and giving other relief. Reliance is placed by the appellant upon the case of Hart v. Tara Prasanna Mukherji (1885) I.L.R. 11 Cal. 718 decided by this Court, but there, as has been pointed out in the course of the discussion, was a distinct order upon the defendant personally to pay the money. In the present case there is no such order; there is merely that which is tantamount to a declaration that if the property be insufficient, the personal liability is to remain, and I may here remark that in this case as regards any personal liability of the defendants to pay the money, both the Courts below have held that the application is too late, and the execution proceedings decreed are confined to a realisation of the property only.
6. Reliance was placed by the learned Vakil for the appellant upon certain passages in the judgments of Macpherson and Trevelyan, JJ., in the case of Joyemaya Dassi v. Thackomoni Dassi (1896) I. L.R. 24 Cal. 473 to which I have already referred, and for the purpose of showing that in that case those learned Judges held that a mortgage decree, such as the present, was a decree for the payment of money within the meaning of Section 230 of the Code. I was a party to that decision, and the reliance I placed upon that section is indicated by my observations at p. 487 of the report. Personally I did not in that case express any opinion upon the point which is the subject of discussion before us now, though no doubt there are passages in the judgments of my learned brotherswhich do support the appellant's present contention. But speaking from recollection, and seeing that neither the case in the Allahabad High Court nor the case of Hart v. Tara Prasanna Mukherii (1885) I.L.R. 11 Cal. 718 were cited, and looking to the head note of the case Jogemaya Dassi v Thackomoni Dassi, (1896) I.L.R. 24 Cal. 473, as to the application to that case of Section 230, and to the circumstance that the point was not necessary to the decision, I am not satisfied it was the intention of those learned Judges finally to decide the point. But even if it were, the decision would not avail the appellant here as I notice that in that case there was a decree against the defendant personally for payment. For these reasons, avid, adopting as I do, the reasoning and conclusion of the learned Judges who decided the case in the Allahabad Court, I think that a decree such as this is not a decree for payment of money within the meaning of paragraph 3 of Section 230 of the Code, and consequently that the order of the Court below was right and must be affirmed.
7. I am of the same opinion. Two questions have been raised before us by the learned Vakil for the appellants: first, whether the decree in this case is a mortgage decree, that is a decree ordering sale of the mortgaged property, or whether it is simply a money decree, that is, a decree ordering the payment of money by the defendant; and, second, whether, even if the decree be held to be a mortgage decree, the present application for execution is not barred by Section 230 of the Code of Civil Procedure.
8. As to the first question, having regard to the terms of the decree, I am of opinion that it is a mortgage decree, that is, a decree ordering the sale of the mortgaged property coupled with a decree for the realization of the balance of the mortgage debt, if any, left after the sale of the mortgaged property, out of any other property belonging to the judgment-debtor. The terms of the decree in this case come very much nearer to the terms of the decree in the case of Jogemaya Dassi v. Thackomoni Dassi (1896) I.L.R. 24 Cal. 473 than to the terms of the decree which was the subject of discussion in the case of Chundra Nath Dey v. Burroda Shoondury Ghose (1895) I.L.R. 22 Cal. 813. The last mentioned case is therefore distinguishable from the present; and following the case of Jogemaya Dassi v. Thakomoni Dassi (1896) I.L.R. 24 Cal. 473, I think we must hold that the decree in this case was a mortgage decree.
9. As to the second contention, the Courts below have already held that so much of the decree as authorizes the decree-holder to realise the judgment-debt out of any property of the judgment-debtor other than the mortgaged property is barred under Section 230 of the Code, and the only question now before us is whether that portion of the decree which directs the realization of the mortgaged debt by sale of the mortgaged property is also barred under Section 230. That question ought, in my opinion, to be answered in the negative. Although the first paragraph of Section 230 relates to a decree generally, the third paragraph which contains the rule of limitation now relied upon speaks of an application to execute ' a decree for the payment of money or delivery of other property.' Can it be said that the decree that is now sought to be executed is one for the payment of money, ' or, more strictly speaking, is that portion of the decree made in the suit which is for the payment of money? No doubt, every mortgage decree directs the mortgagor within a certain time fixed by the Court to pay the mortgage debt; and if such payment is not made, the decree directs the sale of the mortgaged property. The decree in this case did not specify any time within which payment was to be made. But we need not consider the question whether that defect vitiates the decree, because it is too late now to raise that question. What the decree-holder is now seeking to execute is only so much of the decree as directs the sale of the mortgaged property; and an application to execute such a decree is not, in my opinion, within the scope of the third paragraph of Section 230 of the Code. That the Code of Civil Procedure clearly observes a distinction between a simple decree for the payment of money and a decree directing the realization of money by the sale of mortgaged property, will be clear from Section 322 of the Code, and will also be borne out by a reference to Sections 254 and 295. The view I take is fully supported by the case of Ram Charan Bhagat v. Sheoharat Rai (1884) I.L.R. 16 All. 418.
10. As for the case of Hart v. Tara Prasanna Mukherji (1885) I.L.R. 11 Cal. 718 that is clearly distinguishable from the present, because the question that arose there was with reference to the applicability of Section 295 to the decree in that case, and it was held that Section 295 applied, one of the reasons evidently being that the decree in that case not only directed sale of the mortgaged property, but also authorized the realization of the money decreed by sale of property other than the mortgaged property.
11. As for certain observations of two of the learned Judges in the case of Jogemayo v. Thackomoni (1896) I.L.R. 24 Cal. 473 referred to, they have been considered in the judgment just delivered by the learned Chief Justice, and I need say nothing more than this, that those observations, though they may be construed as faveuring to some extent the construction contended for by the learned Vakil for the appellant, are, observations that wore not, necessary for the decision of the case.