SHYAMSHANKAR Vs. NATHURAM

JUDGEMENT

(1.) 1. The respondents Nathuram and Jagannath Prasad obtained a decree against the appellants Shyamshankar and Prabhashankar in the following terms: It is ordered and decreed that the defendants do pay to the plaintiffs Rs. 1,326 for claim and Rs. 135-4-0 for costs of suits in the following instalments: (1) Rs. 185-4-0 costs of suit within three months from to-day. (2) Rs. 1,326 with interest shall be payable in four equal annual instalments commencing from Aghun Sudi 15 Sambat 1988. In default of any two instalments of principal and interest the whole sum then due shall become due at once. The. principal amount of Rs. 1,326 shall carry interest at the rate of 8 annas per cent per mensem from this date to the date of realisation. Pandit Deokrishna Bhagat is a surety for the amount of the decree and the share of two annas in mouza Piproda Chhakka of defendants shall remain charged to satisfy the decretal amount with coats.

(2.) THIS decree was passed on 10th August 1931. The judgment debtors defaulted, and so the decree-holders applied for execution. They asked for the personal arrest of the judgment-debtors and also for attachment of their moveables. The executing Court refused to allow this, and held that since the decree-holder had a charge on certain properties they must proceed against that first, and then resort to their other remedies only if the property charged was insufficient to satisfy the decree. The lower appellate Court reversed this order and held that the decree is a simple money decree in spite of the direction about a charge, and so the decree-holders are entitled to all their usual remedies. In my opinion this is right.

(3.) THE decree in question directs that the judgment-debtors' two annas share in mouza Piproda Chhakka shall be security for payment of the decretal amount. Therefore there can be no question that it creates a charge on that property within the meaning of Section 100, T.P. Act.