MANECKCHAND RAMCHAND Vs. GANESHLAL GOVERDHAN

JUDGEMENT

(1.) The real question in this appeal is whether the judgment-creditor, who is the respondent here, is entitled to bring the properties of the judgment-debtors, the appellants, to sale. The question arises this way. The respondent brought a suit on a money claim against the appellants, who were traders, to recovery sum of Rs. 6,199. Pending the suit the parties arrived at a compromise, under which the respondent agreed to accept a sum of Rs. 5,000 payable by certain instalments. It was further agreed as follows: The properties mentioned in the application, Ex. 6 in the suit, are to be security for the said sum of Rs. 5,000, they being considered as mortgaged. The said properties are to remain as security until payment of the moneys. In default of the payment of any one instalment by the defendants, plaintiff do recover the whole of the amount then due, by the sale of the properties mentioned in Ex. 6. Plaintiff has given remission to the defendants of the rest of the claim and the amount of the costs.

(2.) The compromise was submitted to the court and was recorded and in accordance therewith a decree under Order XXIII, Rule 3, was made. This decree was acted upon, and the appellants paid the amount of the first instalment. On default of the payment of the second instalment the decree-holder instituted proceedings to carry out the decree, and it is out of these proceedings that the present appeal arises. The appellants contended that as they were agriculturists the property was not liable to be sold under Section 22, Dekkhan Agriculturists Relief Act. Their case was that there was no valid mortgage, as the compromise was not registered or attested, nor was the decree, as required by the Registration Act read with Secs.4, 58 and 59, Transfer of Property Act. The learned. First Class Subordinate Judge held in effect that the lands were specifically mortgaged to secure the repayment of the debt to which the decree related and that the case fell within the provisions of Section 22, Dekkhan Agriculturists Relief Act. He accordingly made an order for sale of the properties.

(3.) The learned Counsel for the appellants has raised the following points:----(1) Section 22, Dekkhan Agriculturists Relief Act, applies only to a case of specific mortgage and not to a charge. 5 Ind. Cas. 534 : A I R 1919 P O 84;46 I A 240: 4 O 485 : 37 M L J 525 : 17 A L J L. 117 : 24 O W N 177 : (1920) M W N 66 : 27 M L T 42 : 11 L W 201 : 31 O L J 298; 22 Bom, L R 488 (P O). The compromise and the decree were not registered nor attested as required by the Registration Act and the Transfer of Property Act. 22 M 508; 26 I A 101: 7 Sar. 516 : I Bom. L R 394 : 3 C W N 485 : 9 M L J 147 (P C). If it be held that the section is applicable to the case of a charge, the decree created a mortgage and not a charge. 26 B3 : 33 Bom. L R. 545. The property could not be brought to sale in any event in execution proceedings. This contention however, was not developed nor was pressed, and is, in my opinion, unsustainable on the authorities. (5) On a true and proper construction of Section 22, the case did not fall within the section, as the mortgage or the charge was not created before the decree but by the decree itself, and that the section, even if it be construed to include the case of a charge, would not apply, when the mortgage or the charge was created for the first time by the decree itself: It may be stated that this point, came up for discussion for the first time during the hearing. It was conceded by the learned Counsel for the appellants that if; on the construction of the decree it was held that the transaction was one of charge and not of mortgage, no question of want of registration or attestation would arise. That must be so, because the position in the case of a charge within the meaning of Section 100, Transfer of Property Act, as to the requirements of registration or attestation is different from that in the case of a mortgage under the same Act. Obviously Section 4 would then have nothing to do with the question, and the charge being incorporated in or created by the decree, it would be valid even if unregistered under proviso to Section 17, Registration Act. The points, then which survive are: (a) does the decree create a mortgage or a charge; (6) does Section 22 apply to the case of a "specific charge" and (c) does it apply when either the mortgage or the charge was not antecedent to the decree but was created by the decree itself? I will deal with these points in order. The learned First Class Subordinate Judge has, as I have stated, held in effect that the decree creates a charge. After discussing, the question as to whether the word "mortgage" In Section 22 includes a charge or not, the learned Judge observes as follows: Therefore if the clauses in the compromise be held to amount to only a charge, I hold that the plaintiff is entitled to the remedy by sale as claimed.