GURUPADAPPA MALLAPPA KALASGOND Vs. BASAPPA SHIDDAPPA KALAGI

JUDGEMENT

(1.) THIS is a second appeal from the decision of the District Judge at Bijapur. Defendant No.1 was the vendor and the plaintiff was the purchaser of an immoveable property. The plaintiff failed to pay the balance of the purchase price and brought this suit for possession. The Court passed a decree in these terms: Plaintiff should obtain possession of the suit property. We decide that there is a charge according to law of defendant No.1 for Rs. 315 which the plaintiff has to pay to him out of the amount of sale. We order that the plaintiff do. pay to defendant No.1 Rs. 315 within six months from to-day. If the plaintiff fails to pay the monies (within the period mentioned above) as per above order defendant No.1 should pay Court fees on Rs. 315 and recover the said amount by the sale of the property in suit.

(2.) AFTER this decree was passed the property was sold to a third party and that transaction is not liable to be challenged or set aside. Therefore, with-out taking any further steps, defendant No.1 filed a darkhast and pro-ceeded to attach another property of the plaintiff. The plaintiff's objection was overruled by the executing Court and the lower appellate Court. The plaintiff's contention is that this decree is a preliminary decree and there is no personal decree for payment against him. The form of this decree appears to have been borrowed from the words used in Baslingawa v. Chinnava (1931) I.L.R. 56 Bom. 556: s.c. 34 Bom. L.R. 427: The decree there passed was in similar terms. On behalf of the appellant it was pointed out that although the decree contained an order to pay, a decree similarly worded and passed in a mortgage suit was construed to be a preliminary mortgage decree only in Janardan v. Krishnaji (1920) 22 Bom. L.R. 953. The decree there passed was in these terms (p. 957): Defendants should pay Rs. 300 each year to the plaintiff. Plaintiff should bring the same to account in the following way... In this way the defendants should pay the whole sum in instalments by paying Rs. 300 per year to the plaintiff as above until payment of the sum in full. The property in suit should remain in the possession of the defendants. Until payment of the whole mortgage amount the whole of the sum should be a charge on the mortgaged property. In default of the payment of any two instalments, the plaintiff should recover the whole of the amount then due including all the future instalments by sale of the mortgaged property through Court.

(3.) IN my opinion this form of passing a preliminary decree is unwarranted by the Civil Procedure Code. When a suit is filed to enforce a charge, it is treated as one to enforce a mortgage and the decree passed is in the formof a preliminary decree as prescribed by the Code. Under Order XXXIV, Rule 4, the preliminary decree should contain a declaration that a certain amount is due and is followed by two alternative directions, viz. (1) that if the amount is paid within six months, the property should be reconveyed, and (2) that if the amount is not paid within six months, the, property should be sold by the Court. It is to be remembered that according to the form prescribed in the preliminary decree there is no direction against the defendant personally to pay the amount. The words of Macleod C.J. quoted above, which are argued to mean that there is an order for personal payment, do not, in my opinion, bear that meaning. The learned Chief Justice only referred to the alternative form of payment prescribed by Order XXXIV, Rule 4 .