P.N. Mookerjee, J.
1. On 19-12-1950 the plaintiff Respondent Radha Shyam Biswas obtained a decree (including claim and costs) in Money Suit No. 15 of 1950 of the Court of the Subordinate Judge at Krishnagar against the Defendant Appellant Monindra Nath Biswas for a sum of Rs. 57,376/- upon a Solenama filed in the suit on 5-12-1950. Under the Solenama, the Respondent's dues were payable in several instalments extending up to April 1952 and the mode and manner of payment of these instalments were also clearly specified therein. It was also distinctly provided in the said Solenama that in case of any default on the part of the defendant Monindra Nath Biswas in the carrying out of the terms thereof the Plaintiff Radha Shyam Biswas would be entitled to realise his entire dues or the then, outstanding balance thereof by immediate execution. The Solenama further expressly provided in paragraphs 5 and 6 thereof as follows:
'5. If the defendant violates any of the terms out of all the terms mentioned before or if he does not make payment according to the terms the plaintiff will be entitled to move against the defendant and to realise the unpaid decretal amount by attachment of the money payable from the defendants' bills or his earnest money or his moveable and immovable properties according to his rights.
6. As a consideration for the plaintiffs allowing the defendant to pay the decretal amount in instalments the defendant keeps the immoveable properties mentioned in the Schedule and owned and possessed by him charged by way of security for payment of the decretal dues.' and then followed the 'Schedule of list of the properties' - which were charged.
2. On 8th March 1951, the plaintiff-decree-holder applied for execution of the decree and realisation of his dues by attachment of certain bills and security deposits of the judgment-debtor lying with the Government in its various departments upon the allegation that the said judgment-debtor had fraudulently violated the terms of the Solenama or compromise, referred to in the preceding paragraph. The Court ordered interim conditional attachment of the bills and security deposits and directed issue of notice to the judgment-debtor to show cause against the same. The notice was duly served but no objection was filed by the judgment-debtor and the execution proceeded for some time. In the course of the proceedings, it was discovered that one of the Items of security deposits attached was already under attachment at the instance of some other decree-holders of the self-same judgment-debtor and, accordingly, the Respondent applied for rateable distribution in regard to the same and eventuallyreceived a sum of Rs. 7,583/4/6 on such rateable distribution in part satisfaction of his decretal dues. As to the other items attached there was prolonged correspondence between the Court and the different Government Departments concerned and it appeared plain that the said moneys would not be available in the near future and that even upon realisation, they would not be sufficient to satisfy even a moiety of the decree-holder's dues. In such circumstances, the decree-holder applied on 27th March 1952 for amendment of his execution petition by incorporating therein a prayer for sale of the charged properties for the realisation of his dues and for including in the said execution petition a schedule of the said charged properties for that purpose. This prayer for amendment of the execution petition was allowed and the petition of amendment was directed to be treated as a part of the original petition of execution with a further order of issue of notice on the judgment-debtor under Order 21 Rule 22 C.P.C. presumably with a view to give opportunity to the judgment-debtor to object to the decree-holder's prayer for amendment of the execution petition, as set out above, before any further steps were taken upon the same. Apparently, therefore, the Court's order allowing the decree-holder's prayer for amendment of his execution petition was only provisional at this stage and the Court intended to proceed further in the matter only after consideration of the judgment-debtor's objection, if any, to the same. According to the peon's return, the notice under Order 21, Rule 22 Civil P. C. was duly served and as, on the date fixed in the notice, namely, 26-4-52, there was no appearance on behalf of the judgment-debtor and no objection to further proceedings in execution, the Court on that date recorded an order inter alia to the following effect:
'Notice served. Requisites filed. Issue notice under Order 21, Rule 66 C.P.C. upon judgment-debtor fixing 21-5-52 for return and orders......
3. On 5-5-1952 the judgment-debtor appeared and filed an application under Section 47, C.P.C. and his chief objections were:
(1) That the execution was premature and in contravention of the terms of the compromise decree.
(2) That the notice under Order 21, Rule 22, C.P.C. had not been duly served and the judgment-debtor had been fraudulently denied opportunity to object to the execution in time, and
(3) That the order of amendment of the execution petition was illegal and without jurisdiction and the immoveable properties of the judgment-debtor could not in law be proceeded against in that execution. This application was registered as Misc. Case No. 56/52 under Section 47, C.P.C., and was eventually fixed for hearing on 31-5-52.
4. At the hearing no evidence was adduced by the judgment-debtor in support of his objections (1) and (2), set out above, and there was no denial on oath either of the decree-holder's allegations of default and fraudulent breach of the terms of the Solenama or the compromise decree on the part of the judgment-debtor or of the statements of service of the notice under Order 21, Rule 22, C.P.C., in the relevant peon's return. The third objection was, however, strongly pressed before the learned Subordinate Judge & the Court's power and the validity of the order of amendment of the execution petition were seriously questioned. The learned Subordinate Judge overruled the judgment-debtor's objections and dismissed his application with costs to the decree-holder by his orderdated 31-5-52. The present appeal is directed against this order.
5. Mr. Sarkar, appearing for the appellant, has very fairly conceded that on the materials on record he cannot urge anything in support of objections (1) and (2), as set out above, but he has strongly pressed the 3rd objection and he has developed it under two heads. He has first contended that the order of amendment cannot be sustained in law in the circumstances of this case. He has next urged that, in any event, the immoveable properties of the judgment-debtor cannot be sold in this execution -- not, at any rate, without attachment, -- and, therefore, the order for sale thereof, as made by the learned Subordinate Judge, should be vacated. The real argument of Mr. Sarkar under this head is to the effect that on the question of charge over the judgment-debtor's immoveable properties the compromise decree is merely declaratory and contains nothing more than a mere declaration of charge and that, accordingly, the charge cannot be enforced except by a fresh suit brought for that purpose, and, if the decree-holder wants to proceed against the properties in question, not by way of charge but otherwise under the compromise decree, -- either under the express terms thereof or impliedly thereunder or under the general law -- he must proceed by way of attachment and sale, so that the present order of sale and the issue of sale proclamation without prior attachment is bad. The argument is attractive but, as we shall presently see, it is, in the ultimate analysis, not acceptable.
6. Mr. Sarkar has also argued that no valid charge was created by the compromise decree, as, according to him, the properties, sought to be charged thereby, were not included in the subject-matter of the suit and the decree was not registered. Apparently, this objection on the ground of non-registration of the decree -- if this fact of non-registration is correct and can be found --would possibly be a fatal objection to this part of the decree-holder's case but, upon the facts of the present case, we are unable to entertain it or to give effect to it. It is quite plain that it involves an issue of fact, namely, whether the decree was registered or not. The objection was not taken before the learned Subordinate Judge and, in the circumstances of this case, we are not inclined to allow the judgment-debtor to raise it for the first time in this appeal. Mr. Sarkar's argument, therefore, upon the footing of non-registration of the compromise decree is rejected and we proceed to consider his other arguments.
7. The first question that now requires consideration is whether the learned Subordinate Judge was right in entertaining the Respondent's prayer for addition of the list of immoveable properties to the application for execution and his further prayer for the sale thereof. On behalf of the Appellant, two arguments have been addressed to us on this part of the case. Mr. Sarkar has strongly urged that the decree-holder's application for amendment of the execution petition was in law unacceptable in the circumstances of this case. He has also urged that, in any event, it ought not to have been allowed before giving the judgment-debtor an opportunity to object to the same under Order 21, Rule 22, C.P.Code. We are unable to accept either of these two submissions and we shall presently give our reasons for this view.
8. The second part of Mr. Sarkar's argument need not detain us long. We have already pointed out that the learned Subordinate Judge's order, allowing the amendment in the first instance,was, on its proper construction only a provisional order and that, only when the judgment-debtor failed to appear and object to the same after service of the notice under Order 21, Rule 22 C.P.C, the learned Subordinate Judge took effective steps in terms of the decree-holder's prayers made in his application for amendment. We hold, therefore, that the judgment-debtor was given ample opportunity by the learned Judge in the Court below to object to the amendment, prayed for by the decree-holder, and the order, allowing the said amendment, is not open to challenge for non-compliance with the provisions of Order 21, Rule 22, C.P.C., even assuming -- and this question is not altogether free from doubt but it is not necessary to express any opinion in the matter in the present case -- that the said provision would apply to cases of amendment of execution petition. In this view of the matter, the observations in the case of -- 'Piramal Goenka v. Basanti Das Chatterjee', : AIR1935Cal614 of the report would not help the appellant and the argument of his learned Counsel on this point must fail.
9. Upon the broader question, raised in the other part of Mr. Sarkar's argument under this head, the position seems to be this:
The authority of an executing Court to allow an amendment of a pending execution petition in appropriate cases under its inherent powers under Section 151 of the Code is now too well established to be questioned. Such authority to amend exists apart from and in addition, to the express powers, conferred in that behalf under Order 21, Rule 17 of the Code, and may normally be exercised in favour of the decree-holder where, at the date of the application for amendment, no question of limitation arises in regard to the decree-holder's right to execute the decree. Cases of gross negligence on the latter's part may disentitle him to the exercise of the Court's discretion in his favour but, in the absence of any such negligence, even where the application for amendment is made apparently beyond the time limited by law for the making of the application for execution but where it could legitimately be treated as a continuance or continuation of the original execution petition the Courts have very often allowed the amendment. (Vide -- 'Gnanendra Kumar v. Shayama Sunder', A.I.R. 1918 Cal. 73 (B) and -- 'Sekendarali Meah v. Abdul Gafur', : AIR1942Cal306 . The matter is one of discretion of the executing court (Vide -- 'Abdulla Asghar Ali v. Ganesh Das', , -- 'Nourangilal v. Sm. Charubala Dasi', : AIR1932Cal766 and --'Rohini Kumar v. Krishna Prasad', 39 Cal. W. N. 1144 (F) and subject, possibly, as aforesaid, -- that is, except where the law of limitation raises an insuperable bar or where the decree-holder has been guilty of gross negligence, -- and where no equitable consideration stands in the way the power of amendment should, in our opinion, be liberally exercised.
10. Tested in the above light, the order of the learned Subordinate Judge, allowing the decree-holder's prayer for amendment, appears to be quite correct. There is no question of limitation in the present case, the decree-holder can hardly he said to have been guilty of any negligence, circumstances have changed since the filing of the original application for execution, obliging the decree-holder to proceed against the immoveable properties of the judgment-debtor, and equity is entirely against the latter and predominantly in favour of the decree-holder. In our opinion, therefore, the acceptance of the decree-holder's prayer for amendment of the execution application can-not be successfully challenged in the circumstances of the present case and the appellant's argument in that behalf must fail.
11. In support of the view, taken by us, reference may be made to the decisions of this Court reported in -- : AIR1932Cal766 and -- : AIR1942Cal306 already cited, and to the Bombay decision reported in -- 'Hanamappa Shidappa v. Ningappa Rangappa', A.I.R. 1948 Bom. 116 (G) and also to another decision of our Court reported in -- 'Mohini Mohan v. Navadwip Chandra', A.I.R. 1919 Cal. 1054 (H) which was really a case of amendment of the execution petition, though not expressly dealt with as such, -- to cite only a few of the numerous judicial decisions where similar views were taken. The cases, cited on behalf of the appellant, lay down nothing to the contrary. In the case of -- 'Hayatunnessa Chowdhurani v. Achia Khatun', : AIR1924Cal131 their Lordships declined to exercise their discretion in favour of the decree-holder as, in their opinion, she was guilty of gross negligence. In the other case cued, namely, -- 'Badrinarayan v. Baidya Nath', : AIR1935Cal143 , there was really no pending execution petition which the Court could have amended. In --'Aziz Rahman v. Bepin Behari', : AIR1938Cal162 , S. K. Ghose J. refused the decree-holders' prayer to proceed against the other properties, viz., the moveable of the judgment-debtors as that prayer had not been made by way of amendment of the execution petition and as, further, the decree-holders' right to execute the decree had become time-barred by the time the said prayer was made. These cases were all considered and fully explained in : AIR1942Cal308 already cited. This latter case itself was relied upon by the appellant's learned Counsel but, in our opinion, such reliance was misplaced. The case really supports the respondent as here, as in the case cited, the decree-holder has been compelled, by sheer pressure of changed circumstances, to apply for leave, by way of amendment of the execution petition, to proceed against the other properties of the judgment-debtor &, on the authority of that decision, therefore, this prayer ought to be granted. In our opinion, the amendment, prayed for in the present case, as in the case cited AIR 1942 Cal 306 (C)', has not 'the effect of altering the character of the execution proceedings' and cannot, therefore, be rejected on that ground.
12. There remains now only the case of 'AIR 1935 Cal 614 (A)'. This case also really supports the view we have taken above and the appellant's argument that in Piramal's case their Lordships were inclined to hold that Order 21, Rule 22, C.P.C. applied also to cases of amendment of execution petitions, even if correct, would at best raise a question of procedure of regularity of the execution proceedings and would not really affect the Court's power of allowing an amendment to a pending execution petition. In any event, this case 'AIR 1935 Cal 614 (A)' would not, as already discussed before, be of any avail to the appellant in the facts and circumstances of the present case.
13. We may also observe in passing that in a Bombay case --'Vallabhdas Narandas v. Kantilal G. Parekh', : AIR1947Bom430 Kania J. as he then was, even went to the length of holding that ' the Court has power to permit an amendment even after the period of limitation has expired' and a similar view appears also to have been taken in -- 'Ram Sumaran Prasad v. Ram Bahadur', AIR 1923 Pat 224 (M). It is not, however, necessary for our present purpose toexamine the correctness of this seemingly broad proposition and it will be enough in this case to hold -- as we have already held -- that subject, at the most, to the limitations, already stated, the executing court has very wide powers in the matter of amendment of execution petitions. On this point and in support of this position, reference has already been made to a number of leading decisions and it is only necessary to say that neither the Full Bench case of -- 'Ashgar Ali v. Troilokhya Nath', 17 Cal 631 (N) nor any of the three Patna decisions, reported in --'Jagannath Das v. Chamu Raghunath', AIR 1929 Pat 407 (O) -- 'Ram Ranbijaya Prasad Singh v. Keho Prasad', AIR 1941 Pat 635 (P) and --'Gajanand Sha v. Dayanand Thakur', AIR 1943 Pat 127 (Q), weakens this proposition. In all these cases, amendment was refused because of the learned Judges' view that the decree in question had, on the dates the prayers for amendment were made, become time-barred and, if that view were correct, the refusal of the amendment would be justified even on the principle we have ourselves laid down above. The position, therefore, which we have accepted and approved in this case would in no way be affected.
14. Even apart from the question of amendment, there is another way of looking at the decree-holder's prayer for proceeding against the immoveable properties of the judgment-debtor. At the worst, it can be looked upon as a fresh execution. There is clearly no question of limitation involved in this case. The possible question under Order 21, Rule 22 C.P.C., has already been discussed and found in the respondent's favour. The only other objection that may arise on this part of the case treating the decree-holder's prayer as one for a fresh or independent execution -- is on the ground of what may be called simultaneous execution in that, in allowing the decree-holder's prayer, the Court would be permitting him really, or, in substance, to start a second execution, namely, against the judgment-debtor's immovable properties, while the first one viz., that against his moveable assets in the shape of outstanding bills and security deposits, remains [pending. The Code, however, does not prohibit simultaneous execution and the worst that can be said on this matter is that law leaves this question to the discretion of the executing court. In the circumstances of this case, as discussed above, that discretion would be properly exercised if the prayer for simultaneous execution, is allowed. Regarded in this light too, the decree-holder's prayer for proceeding against the immoveable properties of the judgment-debtor cannot but be accepted and the appellant's objection to the entertainment of the same must fail.
15. We, accordingly, overrule the first point raised by Mr. Sarkar in support of this appeal.
16. The other question raised by Mr. Sarkar and touching more directly the order for sale of the immoveable properties of the judgment-debtor, is not altogether free from difficulty. In our opinion, however, the answer to this question really depends upon the construction of the Solenama decree -- more particularly of terms 5 and 6 of the Solenama. If the said terms, properly construed, give to the compromise decree the effect of a charge decree, that is, of creating or embodying a charge, enforceable in execution, against the judgment-debtor's immoveable properties, the conclusion would immediately follow that the said immoveable properties can be sold straightway in the present execution case and no attachment also would be necessary and, in that view, the order of sale, as made by the learned SubordinateJudge, must be upheld. This position is incontestable as, under a series of uniform decisions, the proposition is well established in this Court that, when a charge is created by the decree and is enforceable in execution under the terms thereof, the statutory impediment, as contained in Order 34, Rules 14 and 15 of the Code, does not apply and no suit is necessary or imperative in that behalf under the law. If, therefore, the above be the true construction of terms 5 and 6 of the compromise decree, this appeal must fail and the execution case must be allowed to proceed from the stage at which it was interrupted by reason of the order for stay, passed in this appeal.
17. If, however, a different construction has to be adopted and under the said terms 5 and 6 of the Solenama the respondent must be limited to a mere money decree with only a declaration of charge, not enforceable in execution, upon the appellant's immoveable properties until the realisation of his dues, the decree-holder's obvious remedy -- if he wants to enforce the charge --may well be only by way of a suit. It is true that, in such a case, in view of term 5 of the Solenama, the decree-holder may also proceed in this execution against the charged properties, not by way of enforcing the charge but by way of a simple money execution, but, in that event, he cannot proceed to sell the said properties without prior attachment, and the order for sale, as made by the learned Subordinate Judge, would, accordingly, require modification, and his order issuing the sale proclamation must be recalled and the execution must proceed afresh from the initial stage starting with the statutory attachment of the properties to be sold.
18. We have carefully considered the relevant terms 5 and 6 of the compromise decree in their proper context and in our opinion, they ought to be construed as embodying a charge decree --and not a mere declaration of charge, not enforceable in execution -- against the judgment-debtor's immoveable properties, mentioned in the schedule to the Solenama. The language of term 6 of the Solenama may not be quite happy but, reading that term along with the preceding term 5 in the light of the context and the relevant Circumstances, it seems to us clear that the intention of the parties was that the charged properties also would be available to the decree-holder, for realisation of his dues in execution,
19. For the realisation of his said dues, the decree-holder is entitled under term 5 of the Solenama to execute his decree against all the properties of the judgment-debtor (including the disputed charged properties). Term 6 creates the charge over the said charged properties for the payment of the said dues. There is nothing in the Solenama to indicate that the charge, so created, would be merely declaratory and would not be enforceable in execution. In the circumstances, we are inclined to hold that the charge created is enforceable in execution, or, in other words, that the decree in question is also a charge decree against the disputed charged properties of the judgment-debtor.
20. We are also of the opinion that when in a pending suit the parties come to a settlement and either party accepts a monetary liability and consents to a decree being passed against him in respect of the same, charging certain properties for the realisation of the decretal dues as in the present case, it is quite reasonable to hold that the charge, so created, would be enforceable in execution and would not, in the absence of express or specific words or any clear indication to the contrary, be merely declaratory, requiringfresh suit for its enforcement. Such a conclusion would indeed, be quite legitimate as, ordinarily, there being already a pending suit, the parties would hardly be contemplating at the moment another suit for recovery of the self-same dues for which a decree is suffered and obtained in the pending suit itself. Different considerations may arise when the decree is not made on consent but, as regards consent decrees, the rule of construction, suggested above, seems to be quite apposite.
21. In the light of the discussion, so far made, the charge created by term 6 of the Solenama, upon which the decree in the present case was passed, should be held to be enforceable in this execution. That charge was created by a decree and so Order 34, Rules 14 and 15 of the Code would not apply. The decree in question was a consent decree and there is no express or specific provision or clear indication therein that the charge created would be merely declaratory and would not be enforceable in execution but would require a fresh suit for its enforcement. On the other hand, as already found by us, the terms of the Solenama themselves suggest, on their proper construction, that a charge decree was intended by the parties. We, do not, therefore, feel persuaded to accept or justified in accepting the Appellant's argument that, for the realisation of his dues from the charged properties, the Respondent has to proceed by way of a fresh suit and cannot sell the said properties in this execution, or, that at any rate, he cannot sell them in these proceedings as charged properties, that is, without first attaching them under Order 21, Rule 54 of the Code. We hold, therefore, that the learned Subordinate Judge was right, in the facts and circumstances of this case, in ordering sale -- and that also without attachment -- of the disputed properties in the present execution and the appellant's objection against the said order or orders must fail.
22. The view we have taken above is quite in conformity with the trend of judicial decisions in this country. In numerous instances Courts have enforced charges, very much alike the present, in execution of the decree creating the same. Such instances include not only cases of consent decree (Vide: --'Ashutosh Bannerjee v. Lukhimoni Debyar', 19 Cal 139 (PB) (R), --'Indramani Dasi v. Surendra Nath', AIR 1922 Cal 35 (S), --Kashi Chandra v. Priyanath Bakshi', : AIR1924Cal645 , -- 'A. C. Dustoor v. H. A. Kandawalla', : AIR1934Cal327 , -- 'Ambalal Bapubhai v. Narayan Tatyaba', AIR 1919 Bom 56 (V),--'Shankar Kondappa v. Ganpat Shankar', AIR 1929 Bom 227 CW), --'Gurupadappa v. Karveerappa', AIR 1934 Bom 241 (X), --'Chaurasi Mahasarick v. Bhagan Sahu', AIR 1924 Pat 20 (Y), ---'Raghunandan Prasad v. Wajid Ali', AIR 1929 Pat 439 (Z) and -- 'Sheonandan v. Mt. Asarfi Kuer', AIR 1946 Pat 216 (Z1) but also cases where the decrees were not made on consent: Vide -- 'Brajasunder Peb v. Sarat Kumari', AIR 1916 Pat 252 (Z2) and--'Sowbagia Ammal v. Manika Mudali', AIR 1918 Mad 668 (Z3) where different consideration might have arisen, as hinted before. Even more extreme instances are to be found in -- 'Tata Iron and Steel Co. Ltd., v. Charles Joseph Smith', AIR 1930 Pat 108 (Z4), -- 'Krishna Prasad v. Pratap Narayan', AIR 1934 Pat 608 (Z5) and -- 'Mool Chand v. Lalta Prasad', : AIR1934All524 . The two cases of this Court reported in --'Gobinda Chandra v. Kailash Chandra', AIR 1918 Cal 705 (Z7) & -- 'Sudhamoyee Singha v. Jessore Loan Co, AIR 1945 Cal 322 (Z8) do not really affect this position. In either of the said two cases, apartfrom the fact that the decree in question was not a consent decree, it appears clear from the Report that in the suit a prayer for sale of the charged properties had been made but was either expressly refused or not granted by the Court. Those cases are, therefore, clearly distinguishable from the present case and the other cases, cited above, and in either of them, the Court's refusal to enforce the charge in execution appears to have been fully justified. The two older cases of this Court, reported in -- 'Abhoyessury Debee v. Gouri Sunkur', 22 Cal 859 (Z9) and -- 'Matangint Dassee v. Chooneymoney Dassee', 22 Cal 903 (Z 10) and like decisions before the introduction of Or. 34 of the Code to replace the corresponding provisions of the Transfer of Property Act need not trouble us as the law has materially changed in the meantime and in the light of that change those older cases have been fully explained in the later judicial decisions : Vide 'AIR 1918 Mad 668 (Z 3) 'AIR 1922 Cal 35 (S)' and 'AIR 1919 Bom 56 (V)'. It seems further that those older decisions are not easily reconcilable with the Full Bench case of this Court, viz., '19 Cal 139 (R)', cited in the earlier part of this paragraph.
23. It thus appears that the appellant's contentions in the present case are opposed alike to principles, precedents and authority and they cannot, therefore, be accepted. This appeal must, accordingly, fail and it is dismissed but, in the circumstances of this case, we make no order for costs in this Court.
Renupada Mukherjee, J.
24. I agree.