AYYAPPA NAICKER Vs. THAYAMMAL

JUDGEMENT

(1.) The appellant-plaintiff purchased the suit properties in 1924 in execution of the decree in O.S. No. 48 of 1915 on the file of the Sub-Court of Tuticorin. The defendant was the decree- holder in O.S. No. 55 of 1922 on the file of the Additional Sub-Court of Tinnevelly, and himself became the purchaser of the properties in execution in March 1926. That suit (O.S. No. 55 of 1922) had been instituted on a mortgage (Ex. L) executed some time in 1917; but, prior to the date of Ex. L, the decree-holder in O.S. No. 48 of 1915 had entered into an arrangement with the mortgagor who was also the judgment-debtor in O.S. No. 48 of 1915 and that arrangement is embodied in Ex. F. The principal question for decision in this second appeal is whether, under Ex. F a charge had been created for the amount due under the decree in O.S. No. 48 of 1915 so as to postpone the title of the purchaser in O.S. No. 55 of 1922 to that of the purchaser in execution of the decree in O.S. No. 48 of 1915.

(2.) To understand the true effect of Ex. F it is necessary to state a few facts that led up to it. The decree in O.S. No. 48 of 1915 was for a considerable sum of money out of which some portion had been paid and for the balance execution proceedings were started by E.P. No. 102 of 1916 (Ex. E). In the course of that execution, several properties belonging to the judgment- debtor were attached and were about to be brought to sale. There was another decree in the discharge of which the decree-holder in O.S. No. 48 of 1915 as well as the judgment-debtor were interested and the decree-holder desired to. enable the judgment-debtor to discharge that decree also. It was therefore arranged that some of the properties which had been attached under Ex. E-1, in O.S. No. 48 of 1915, should be released from attachment and the judgment-debtor should also be given time to pay up the balance due in O.S. No. 48 of 1915 by four instalments. As is natural in the circumstances the decree-holder was anxious to safeguard his position by retaining a hold on the properties which were not to be released from attachment. The arrangement, so far as it related to O.S. No. 48 of 1915, is provided for in Clauses 4 and 5, Ex. P. To complete the narrative it is only necessary to add that Ex. E was presented to the Court as a razinama entered into by both parties during the execution proceedings and the Court granted permission to compromise the suit and stated that a decree will be passed in terms of this compromise. It is not possible to say from the record whether a revised decree in these terms was in fact drawn up or not, but some of the execution petitions filed in the case refer to some such decree. I presume that this order of Court must have been really made under Order 20, Rule 11, Sub-clause (2), Civil P.C. as otherwise the terms of the original decree cannot be varied by the substitution of the provision for instalments.

(3.) On the basis of the razinama decree, applications for execution were made from time to time. It is sufficient to mention Exs. I, II, K, K-I and K-2, K-2 being the last of the applications under which the properties were actually brought to sale and purchased by the plaintiff. Ex. 1 was only for one instalment, and as that amount was paid soon after the execution petition was filed it was found unnecessary to proceed further with that petition. But Exs. II, K and K- 1, were filed in respect of the remaining two instalments and on both these occasions the proceedings were discontinued merely because the decree-holder did not want to pursue the matter and not because his claim was satisfied. This will have a material bearing upon one of the questions raised in the case, namely that covered by issue 2 as to the cessation of the attachment. Order 20, Rule 11(2) of the Code provides that when a judgment-debtor is given an indulgence by way of instalment payments, the Court may grant that indulgence on such terms as to attachment of property or taking of security from him or otherwise as it thinks fit. This only carries, out the probable intention of the parties when the decree-holder is willing to oblige the debtor by postponing the payment. It has no doubt unfortunately happened in this case that by reason of the facts to be dealt with under issue 2 the attachment has ceased to be in force before the sale under Ex. K-2 took place. But looking at the probable intention of the parties and the position as it stood at the date of Ex. F, I see no particular reason to think that the parties would have preferred such protection as the creation of a security would have afforded to the advantages, arising from a continuance of the attachment which had already been made. The language of Ex. F must be construed with reference to the circumstances as they stood at the date of Ex. F and cannot be strained to meet the altered situation arising from the fact that by some blunder of the decree-holder the attachment has afterwards, proved unavailing.