POSTI MAL Vs. FIRM RADHA KISHAN-LAL CHAND

JUDGEMENT

(1.) The decree-holder respondent instituted a suit against the appellant on foot of a promissory note for recovery of a certain sum of money.

(2.) The suit was contested on the ground which it is not necessary to mention for the purposes of this appeal. Eventually the parties entered into a compromise which provided that an instalment decree for Rs. 3,100 be passed in favour of the respondent. Rs. 500 was made payable every half, year; on nonpayment of first instalment, interest at the rate of 9 per cent per annum was made payable. In default of payment of two consecutive instalments, the decree holder was declared entitled to obtain execution of his decree in respect of the entire decretal amount remaining unpaid. The defendant (the appellant in this Court) further hypothecated certain properties which were detailed in the compromise. A decree was passed on foot of the compromise and embodied all its terms. Default was made in payment of the first and all subsequent instalments. Thereupon the decree-holder applied for execution of his decree by sale of the property- Hypothecated under the compromise. Thus defendant judgment-debtors objected infer alia, on the ground that the hypothecated property could not be sold in execution of the decree passed on the compromise and that unless the decree holder instituted a suit under Order 34, Rule 4, Civil P.C. he was not entitled to have the hypothecated properties sold. The Court of first instance upheld the objection but; the lower appellate Court overruled it. Hence this appeal.

(3.) The only question which has been argued before us is whether it is open to the decree-holder to obtain satisfaction of his decree by sale of the hypothecated property otherwise than by instituting a suit under Order 34, Rule 4, Civil P.C. It is argued on behalf of the appellant that Order 34, Rule 14, Civil P.C., is a bar to the decree-holder obtaining sale of the hypothecated property in execution of the consent decree. That rule provides that where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage. Rule 15 extends the operation of Rule 14 to cases of charge. Whether the compromise be regarded as creating a mortgage or merely a charge, a question which it is not necessary to decide, Order 34, Rule 14 read with Rule 15, would stand in the way of the decree-holder obtaining satisfaction of the decree by sale of the hypothecated property otherwise than by instituting a suit under Order 34, Rule 4, if other requirements of Rule 14 have been made out in the present case.