MADHAVANN NAIR Vs. CANARA BANK LTD., QUILON

JUDGEMENT

(1.) IT is the construction of a decree that is in controversy in this appeal.The dispute arose in execution proceeding and that was whether the properties which were being put up for sale in execution were liable to be sold.The decree was one obtained on the basis of a mortgage executed by the 1st defendant in favour of the plaintiff,the Canara Bank.The decree obtained by the Bank reads. ...[VERNACULAR TEXT OMITTED]... The plaint amount and the costs are decreed to be recovered from the 1st defendant and A and B schedule properties.The contention of the 1st defendant's counsel is that the decree obtained by the plaintiff is only a money decree and he is not entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale of the property and obtaining a decree.According to him the decree is not one for sale of the mortgaged property.The question for consideration is therefore whether the decree could be construed as a decree for sale of the properties mortgaged.

(2.) THE case arose from an area of the Kerala State which prior to 1st November 1956,was a part B State,composed of the area of the erstwhile States of Travancore and Cochin.The provisions of the Transfer of Property Act were not applicable to that State until they were made applicable later.There were no rules corresponding to those in Order XXXIV of the Code of Civil Procedure,1908 in the Code of Civil Procedure of the Travancore State.After the formation of the Travancore -Cochin State by the Code of Civil Procedure(Amendment)Act,1951(Act II of 1951)the provisions of the Code of Civil Procedure,1908 were extended to the State of Travancore -Cochin and it was only thereafter the Order XXXIV was in force in that area.The Transfer of Property Act came into force in the Travancore Area only on 1st May 1952.Decrees were not being passed in conformity with the provisions of Order XXXIV of the Code of Civil Procedure.Evidently the decree before us has not been in conformity with such provisions.Had that been the only objection the appellant who,as 1st defendant,raised objection to the execution of the decree by sale of mortgaged property could not have much to say by way of objection to the execution.It is no doubt true that the provisions of Order XXXIV contem­plates a preliminary decree directing payment of the amount under the mortgage within a specified period and passing of a final decree on failure to make such payment.But if a decree for sale is passed by a court without strictly complying with this procedure the irregularity in the pro­cedure may be open to objection in an appeal.But it is not as if a decree so passed would be without jurisdiction.The learned counsel for the appellant does not canvass the correctness of this principle.But according to him the decree passed in this case cannot be read as a decree for sale.It is a decree for sale of properties and if there is no decree for sale of properties the only method to enforce recovery by sale of the properties would be another appropriately framed suit for sale of the properties.Therefore we are only concerned with the question here whether the decree before us is one which could be construed as a decree for sale of the property.

(3.) THOUGH any express provision that the mortgage amount could be recovered by sale of properties are as such absent in the decree,we think the essence of the decree is one which enables the decree -holder to realise the decree amount by sale of the mortgage properties.We see no warrant for the contention that the decree is only a money decree and the decree -holder has no right to bring the mort­gaged property to sale otherwise than by instituting a suit and obtaining a decree for sale.The right was there and no declaration was ever sought nor was such declaration necessary.If the decree provides that the amount due may be recovered by the plaintiff from A and B Schedule properties,it necessarily means that it could be recovered by sale of the properties and such sale could only be in execution of that decree and not in execution of another decree to be obtained in a suit to be filed by the party afresh.The decree follows the usual form which the courts in the Travancore area were used to pass prior to the commencement of operation of Order XXXIV of the Code of Civil Procedure.That furnishes the background form the manner in which the decree has been drawn up by the court.The situation is not something without any parallel,for prior to the commencement of the opera­tion of section 88 of the Transfer of Property Act which provided for a decree for sale,decrees passed in terms similar to those of the decree with which we are con­cerned here had to be construed by courts.The case before the Madras High Court in Anna Pillai v.Thangathammal I.L.R.( 1807)20 Madras 78 is an instance in point.The decree there provided for the payment of the secured debt the property hypotheca­ted in the bond being also held liable for the whole amount thus awarded ;.The court noticed the plea that under section 99 of the Transfer of Property Act the property cannot be sold unless the suit had been brought under section 67 and the decree is passed under section 88 of the Act.The court said: