RAJARATHNA NAIDU Vs. RAMACHANDRA NAIDU

JUDGEMENT

(1.) THE question for decision is whether the second proviso to Order 21, Rule 16, of the Civil P. C. applies to a mortgage decree for sale. It applies in terms only to a decree " for the payment of money ". THE phrase in the old Code, Section 232 was " a decree for money." THE alteration indicates that emphasis" is to be laid on the word payment" and that unless the decree directs payment of money, the rule will not apply. This is the view taken in the judgment of the Calcutta High Court in Laldhari Singh V/s. Manager, Court of Wards (1911) CLJ 639 at 642. THE Calcutta High Court has consistently held the view that this proviso will not apply to mortgage decrees for sale [vide the above ruling and also Lalla Bhagun Pershad V/s. Halloway (1885) ILR 11 C 393 and Jagabandhn V/s. Haladhar (1917) 27 CLJ 110].

(2.) APPELLANT relies on three cases of this High Court. Two of these, Vaidhianathaswami Iyer V/s. Somasundaram Pillai (1904) ILR 38 M 473 and Ramayya V/s. Krishnamurthi (1916) ILR 40 M 296.are not of much assistance as they do not deal with the language of Order 21, Rule 16, or the corresponding section under the old Civil Procedure Code. In Sadagopa Iyengar V/s. Sellammal , language somewhat favourable to appellant's contention has been used, but even in that case it is clear that the decree was a " decree for the payment of money," although in the case of the 1 defendant the decree directed the money to be paid out of his family property. None of these cases affects the general principle laid down in the Calcutta cases, and inherent, in our opinion in the rule itself, that the proviso does not apply to decrees which are in essence decrees, not for the payment of money but for the sale of property. We are of opinion that the order appealed against is correct and we dismiss this appeal with costs.