1. (After stating facts the judgment proceeded.) It was argued on behalf of the appellant that Section 145 would not authorize the order which the learned Judge made in the case.
2. I do not think it necessary to refer to any of the cases cited in this Court except one, which I will presently mention, because in my judgment the facts of this case are such as to differentiate it from any of the authorities cited.
3. The position, in my judgment, is clear. The defendant agreed that a decree should be made against him for Rs. 1,37,000 with interest, and that it should be paid by instalments therein mentioned, that security should be furnished by the 1st January 1925 and that until such security was furnished, the 'present security' should remain, that is to say, the title-deeds which had been deposited in August 1924 by the defendant and his wife, the appellant, with the Registrar of this Court.
3. The defendant further agreed that if he failed to pay three consecutive instalments, the whole amount of the decree should become payable and the decree-holder in such case might execute the decree irrespective of his right against the security and might also execute against the security.
4. The security, against which the decree-holder was entitled to execute, was the property, the title-deeds of which had been deposited by the defendant and his wife and which were to remain as security upon the terms of the consent decree until further security was given or the money paid. That is what the defendant agreed to: and it is clear from the terms of the decree which I have already mentioned that the defendant through his counsel, undertook to obtain the consent of his wife to the said terms.
5. In my opinion the consent of the appellant to the terms of the consent decree was in fact obtained as appears from the Appellant's letter of the 14th November 1924 to which I have referred.
6. I am of opinion upon the terms of that letter, reading it by itself, that the appellant agreed to the terms of settlement which are contained in the decree. When, however, it is remembered that the defendant through his counsel undertook to obtain the consent of his wife to the terms of the consent decree, there cannot be any doubt that the intention of the parties was that the properties, the title-deeds of which had been deposited with, the Registrar by the defendant and his wife, the appellant, should remain as security for the performance of the terms of the consent decree.
7. In that event not only the defendant but also the appellant agreed that if three consecutive instalments remained unpaid, the whole amount of the decree should become payable and the security should be realized by means of execution.
8. The instalments were not paid as they became due, and no other security was furnished and, in view of the terms of the consent decree, I see no answer to the application for execution which was made on behalf of the respondents.
9. I am, therefore, of opinion that the conclusion at which my learned brother arrived, was right, although I am not able to agree with the grounds on which he relied.
10. Before I conclude my judgment I desire to refer to one case which was cited in the course of the argument, viz., Mahalakshen Bai v. Badan Singh A.I.R. 1924 All. 105. The head-note runs thus:
Where a parson stands surety for the due performance of a decree and by way of security hypothecate immovable property, without undertaking any personal liability thereunder, then so long as the surety still retains the equity of redemption of the hypothecated property, the security bond can under Section 145 of the Code of Civil Procedure be enforced against the property directly by execution, and there is no necessity for the filing of a separate suit on the bond.11. With great respect to the learned Judge who decided the case, I am unable to say that, as at present advised, I should be prepared to adopt the conclusion which was therein made. It seems to me that the decision is inconsistent with the judgment of the Judicial Committee in the case of Raj Raghubar Singh v. Jai Indra Bahadur Singh  42 All. 158.
12. In that case Lord Phillimore is reported to have said:
In the course of the judgment in India Section 145 was referred to; but whatever might have been its effect if the sureties had been personally liable it has no application now that their Lordships have construed the instrument as giving only a charge upon property.13. In the Allahabad case, to which I have referred, the learned Judge came to the conclusion that the surety had not undertaken a personal liability but that, there was a clear.
indication that the money which might be found due on the decree passed in appeal would be realisable in the first instance from the judgment-debtor, and that if the judgment-debtor did not pay the same, it would be realisable from the property hypothecated by the surety.14. It seems to me, as at present advised that in the circumstances stated in that case, and having regard to the decisions of the Judicial Committee, to which I have referred, Section 145 would not be applicable.
15. The learned Judge's order will stand but by consent between the parties the property will not be sold until the 30th June 1926. Either party may apply to the Court for such directions as may be necessary in connexion with the sale. When the property is sold, the sale proceeds will be paid into Court. Bach party will then be at liberty to apply for such directions as may be necessary.
16. The appeal is dismissed with costs. It has been agreed by the parties that the Receiver should not take possession of the property for a fortnight from this date.
17. I agree. In this case there was a consent decree of the 14th November 1924 and, apart altogether from the terms of settlement which are scheduled to the decree, the consent decree itself says that the defendant through his counsel undertook to obtain the consent of his wife to the said terms; and it was ordered that the defendant on the 1st of January 1925 should furnish security to the extent of Rs. 1,60,000 in immovable property or in war bonds to take the place of the security already furnished which was security for the sum of Rs. 1,00,000 only. The terms of settlement need not be read again. They contain a provision that the decree-holders might execute against the security, and though it is arguable that this does not refer to the present security I think it difficult to maintain this. The letter of the 14th November 1924 refers to the terms of the consent decree and, in my opinion, it is to be regarded as a consent on behalf of the lady to the whole arrangement made by her husband. The points which had to be made specially clear were; first, that there should be no question whether the surety had been released by giving time to the principal debtor; and secondly, that there should be no question that the sums of money to be recovered under the consent decree were in truth and in substance a bona fide adjustment of the plaintiffs' claim for which the lady had given security. In these circumstances, the question whether it is necessary to bring a new suit so far as the lady is concerned raises considerable difficulty.
18. Apart from cases where the security has been given to the Court itself, and not to any person who can be regarded as a mortgagee, the main case that requires to be considered is the decision of Mr. Justice Harrington and Mr. Justice Mookerjee in 1905 in the case of Tokhan Singh v. Girwar Singh  32 Cal. 494. That case was not dissented from in any way by the Privy Council in 1919 by the judgment delivered by Lord Phillimore in the case of Raj Raghubar Singh v. Jai Indra Bahadur Singh  42 All. 158. On the other hand, it was sufficient for their Lordships' purpose that there was no mortgagee who could institute a suit. There are three points which have to be carefully considered in connexion with Tokhan Singh's case  32 Cal. 494.
19. The first point is that since that case was decided the Code of 1908 has clarified and limited the provisions of what is now Section 145. I think the true construction of Section 145 is that which was laid down by Sir Promoda Charan Banerji in the case of Amir v. Mahadeo Prasad  39 All. 225 decided in 1916. The case itself ultimately turned out to be erroneous in this respect that, as we now know from the judgment of Lord Phillimore, it does not follow, because Section 145. does not apply, that a separate suit is necessary or possible. This is not so if the security is given to the Court itself and not to a mortgagee.
20. The second point about the decision in Tokhan Singh v. Girwar Singh  32 Cal. 494 that requires attention to day is that the terms of Section 99 of the Transfer of Property Act have been abolished and in place thereof there is the very different and much more limited provision of Rule 14 of Order 34 of the Code. The claim in that case was held to be one which did not arise under the mortgage as is the claim against the defendant here and it is doubtful whether the appellant can say that the case as against her is within the words of Order 34, Rule 14.
21. The third thing which has to be observed about that decision is that although in that case the plaintiff had taken an assignment of the security from the Registrar the learned Judges do not appear to have directed their attention to the provisions of what is now Section 47 of the Code. The security in that case was given by the judgment-debtor himself and the cases of Sadasiva v. Ramalinga  2 I.A. 219 and Subramanian Chettiar v. Raja of Ramnad  41 Mad. 327 show that Section 47 makes it difficult as regards a judgment-debtor to insist upon or permit a separate suit for the enforcement of the security. It seems chat it is open to a person giving security to waive the necessity for a suit subject at least to what was said by Lord Davey in the case of Khiaraj Mal v. Diam  32 Cal. 296.
22. I am not prepared to say that such an order as this could be obtained under Section 145. If this case is regarded as a purely monetary decree available against a surety, then execution under that decree must, it seems to me, be on one or other of two principles: either it is execution against the bare equity of redemption for the mortgage debt, a thing which this Court will not allow and which would be directly contrary to what was laid down by Lord Davey in the case already mentioned, or it must be an execution on the basis that the rights under the mortgage have been waived entirely. I would like to point out that under the Transfer of Property Act, under Section 99, there was a very respectable body of authority in the case law to the effect that a mortgagee could not execute upon the mortgaged subject and get out of the restrictions of Section 99 even by waiving the mortgage rights. One instance of such a case is Indrapal v. Mewa Lal  36 All. 264. The same principle would seem to apply where Rule 14 of Order 34 is applicable and I am, therefore, not prepared to commit myself to the proposition that this order could be upheld by the plaintiffs endeavouring to take their stand upon Section 145.
23. However, in this case, the two parties concerned in this joint bond, viz., the defendant and his wife, charged different interests in the same property which it would be inconvenient and wasteful to realise separately by sales in different Courts and at different times. I see great difficulty in realizing the defendant's interests save by proceedings under Section 47 and as I think that both intended to agree that the matter should be thrashed out in execution, I think the judgment of the learned Judge should be supported.
24. It was suggested before us for the first time that the letter of the 14th November 1924 was void for want of registration. I am not prepared to say that independently of any enquiry or investigation into the facts it is plain that that letter was intended as a complete re-statement of the contract for security by way of equitable deposit so as to constitute the bargain. As the letter does not even mention the amount of the original security it would be difficult to say that; but in any case I do not think that that point can be taken in this Court for the first time in view of the necessity for investigating into the facts from that point of view.
25. We are not informed of any third parties whose interests require to be consulted, nor is there any difficulty in providing that a reasonable further time for redemption shall elapse before the sale is held.