SRI MAHARAJA PARBHU NARAIN SINGH Vs. LALJI SINGH

JUDGEMENT

(1.) The appellant obtained a decree from the Court of the Subordinate Judge of Arrah against four persons. The operative part of the decree may be rendered as follows: "It is decreed and ordered that the plaintiff s claim against defendant No. 3 be decreed ex parte, and against defendant No. 2 on his admission of the claim, and against defendants Nos. 1 and 4 according to a compromise." The decree goes on further to direct that if the decretal money be not recovered from the defendants Nos. 1--3, then it should be recovered from the property mortgaged by the fourth defendant as a surety. The decree was transferred to Benares. It was passed on the 26th of May 1S97 and the application for execution of it was made on the 5th of January 1910. Lalji, one of the respondents in this Court, objected that the decree was barred under the provisions of Section 230 of the Code of Civil Procedure of 1882. This contention was accepted by the learned Judge, who in his judgment said: "The decree with which I am concerned is, however, a money- decree so far as it affects the appellant and other lessees, and a mortgage-decree, so far as it affects the surety, Lachman Singh." Coming to that conclusion the lower Appellate Court dismissed the application for execution.

(2.) In second appeal it is urged by the learned Vakil for the decree-holder that the decree of which execution is sought is a mortgage-decree within the meaning of Section 230 of the Code of Civil Procedure, Act XIV" of 1882. I am unable to accept this contention. The decree so far as the respondent Lalji Singh is concerned, cannot be regarded as a mortgage-decree in any sense of the word. So far as the appellant is concerned, it is a decree for payment of money. I, therefore, would dismiss the appeal with costs including in this Court fees on the higher scale. Chamier, J.

(3.) The suit in which the decree now in question was obtained was brought against three lessees, who were defendants Nos. 1, 2 and 3 and their surety who was defendant No. 4. The decree directed the defendants Nos. 1, 2 and 3 to pay the amount decreed in certain instalments, and then went on to provide that if the money decreed could not be recovered from defendants Nos. 1, 2 and 3, the decree-holder might proceed to bring to sale the property which had been mortgaged to the plaintiff by the surety. The decree-holder made several ineffectual attempts to recover his money in the district in which the decree was passed. Subsequently, the decree was transferred for execution to Benares. By the present application the decree-holder seeks to bring to sale some immoveable property belonging to defendants Nos. 1, 2 and 3, or one or more of them. His application has been dismissed on the ground that the decree, so far as defendants Nos. 1, 2 and 3 were concerned, was a decree for the payment of money within the meaning of Section 230 of the Code of Civil Procedure of 1882. The lower Appellate Court has accepted the contention and dismissed the application with costs. 3. This is a second appeal by the decree-holder. It is conceded, in accordance with a recent decision of this Court, that Section 48 of the Code of Civil Procedure, 1903, does not apply to the case, and that the question for decision is whether the decree held by the appellant is a decree for the payment of money within the meaning of Section 230 of the Code of 1882. The decree, in my opinion, cannot by any possibility be described as a decree for money against defendant No. 4. If it is possible to split up the decree into two decrees, then, no doubt, it may be said that the decree is a decree for payment of money against defendants Nos. 1, 2 and 3 and is a decree for the sale of immoveable property to which the third paragraph of Section 236 of the Code of 1882 does not apply. But it seems to me that if a decree can be split up in this way, where different reliefs are given against different sets of defendants, then a decree may be split up also where several distinct reliefs are given against the same set of defendants. I find no justification for this course. The terms of the decree before us undoubtedly go beyond the terms of an ordinary decree for the payment of money as that expression has been interpreted by this Court. It provides for the sale of immoveable property under certain contingencies. In my opinion, the principle on which the case of Pahalwan Singh v. Narain Das 22 A. 401 was decided applies to the. present case, and I would hold that the decree before us is not a decree for the payment of money within the meaning of Section 230, and I would allow this appeal, set aside the decree of the Court below, and remand the case for disposal on the mesits according to law.