ARYAN BANK OF VIZAGAPATAM (UNLIMITED) BY THE AG MANAGING DIRECTOR, T APPALANARASIAH PATRUDUGARU Vs. VENKATA NARASAYYAMMA

JUDGEMENT

(1.) This is an appeal by the decree-holder in O.S. No. 37 of 1896 (Pauper Appeal No. 5 of 1900 on the file of the High Court) against the order of the District Judge of Vizagapatam, dated 30 August 1901, declaring in Court under Section 88 of the Transfer of Property Act the amount due to the decree-holder for principal and interest on the mortgage up to 7th August 1901, on taking an account as directed by the decree of this Court, dated 7 February 1901, in the above appeal. The respondent's pleader raises the preliminary objection that no appeal lies to this Court against the said order, and he admits that, if this objection were well- founded, the account itself should have been taken in. this Court and the order fixing the amount should have been declared in Court by this Court on the 30 of August 1901. In our opinion the objection is not well-founded and the order appealed against is really one falling under Section 244(c) of the Civil Procedure Code, being a question arising between the parties to the suit in which the decree was passed on appeal by this Court and relating to the execution of that decree. Following the decision of this Court in the recent Full Bench cases See Mallikarjunadu Shetti V/s. Lingamurti Pantulu & c. I.L.R., 25 M. 244, we hold that a decree for sale passed under Section 88 of the Transfer of Property Act is the final decree in the suit, and that all proceedings taken subsequent to that decree for the purpose of enforcing and working out such decree are proceedings in execution of that decree. A decree for sale passed under that section may declare the amount due on the mortgage at the date of such decree, or direct, as was done in this case, that an account be taken of what will be due to the plaintiff for principal and interest on the mortgage on a future day which is to be fixed by the decree itself. In this case the 7 of August 1901 was the day so fixed by the appellate decree of this Court, dated 7 February 1901, and the decree further provided that the amount that may be declared due on the 30 of August 1901 should be paid on or before the 31 of December 1901. In our opinion an application which the decree-holder may make for taking the account and declaring the amount which may be found due on the taking of such account is an application to enforce that portion of the decree within the meaning of Section 230 of the Code of Civil Procedure, and that being so, the decree-holder is entitled to apply under Section 563 to the Court which passed the decree against which the appeal was preferred to the High Court. The Court which is to declare the amount due by virtue of. the appellate decree is, therefore, the Court which passed the original decree. In this view the order in question falls under Section 244(c) and is analogous to orders under clauses a and b of Section 244 fixing the amount of mesne profits or interest payable under a decree.

(2.) The preliminary objection therefore fails. The appellant's counsel takes exception to two items in the account. The first relates to the amount of mesne profits, Rs. 12,666-10-8. In regard to this no evidence has been offered by the appellant to show that it should not be fixed on the basis of the lease, as was done by the Judge.

(3.) As regards the second item, Rs. 6,161-11-0, no doubt in the plaint it was credited towards the mortgage debt sued for, but it was so credited towards the amount due under three mortgage bonds, whereas in appeal the appellant was made liable only under two mortgage bonds. In the absence of any evidence to the contrary, the District Judge ought to have credited only a proportionate share of this item towards the sum due by the appellant. The Vakils on both sides agree that on this account the figure Rs. 6,161-11-0 should be Rs. 4,407.