VAIDHINATHASAMY IYER Vs. SOMASUNDRAM PILLAI

JUDGEMENT

(1.) The decree in the case under reference contains an order for the sale of the mortgaged property and also an order for the recovery personally from the judgment-debtor and from his other property of what may remain undischarged by the sale proceeds of the mortgaged properly. In Mallikarjuna Saslri V/s. Narasimha Rao I.L.R. 24 M. 412 it was held by a Division Bench of this Court that Section 258 of the Civil Procedure Code was inapplicable to such a case. In a case, however, where a, similar question was raised in regard to Section 295, C.P.C., Collins, C.J. and Benson, J. had held that a person who had obtained a decree for the sale of mortgaged property and who had not proceeded against such property was entitled to claim rateable distribution under that section as if he was the holder of a decree for money, Kommachi Kather V/s. Pakker and Ors.. I.L.R. 20 M. p. 107 Following this decision Boddam and Sanharan Nair, J.J. in C.M.A. No. 4 of 1904 14 M.L.J. (Rec. Cas.) 31 held that Section 230, C.P.C., was applicable to a decree containing an order for the sale of the mortgaged property. The words in Section 295 of the Civil P. C. and in Section 230 so far as the point under discussion is concerned are "decree for money" and "decree for payment of money" respectively. There can be no doubt that in some parts of the Code as for instance in Sections 220 and 222 the language implies that the framers of the sections intended a distinction between decrees merely directing payment of money and decrees ordering the sale of mortgaged property. If this distinction is to be maintained with reference to Secs.230, 258 and 295 of the Code, perhaps the course suggested in the order of reference riz., that until the remedy against the immoveable property is exhausted the decree should be treated as not a money decree, would be the one which would enable the distinction to be kept up. But that course would obviously detract from the intention of the legislature in cases where the decree contains an order for sale as well as an order for payment of money with reference to every one of the three sections mentioned. So far as Section 230 is concerned the execution may be prolonged beyond the 12 years prescribed. So far as Section 258 is concerned payments or adjustments clearly within the purview of the section as respects the direction to pay the money would be rendered nugatory. And as regards Section 295, the inconvenience pointed out in Kommachi V/s. Pakker and Ors. I.L.R. 20 M. 107 will arise. Again the reason of the provision in Section 258 is that in cases where the decree is not for the delivery of specific property, that is to say, in cases where the satisfaction of the decree involves nothing more than payment of money, disputes connected with such payments or adjustments out of Court should be heard and determined in execution within a very limited time; and the party failing to obtain such determination should in execution be precluded from relying on them. This reason would seem to be as much applicable to a payment or adjustment with reference to a decree in which there is nothing more than an order for the sale of mortgaged property. The better view seems to be in the language of Tottenham and Agnew, J.J. in Hart V/s. Tara Prasanna Mukherji I.L.R. 11 C.P. 718. that every decree by virtue of which money is payable is to that extent a decree for money and that Section 258 must be held applicable to cases in which the decree is as here and even to cases where there is no direction to pay personally at all but only an order for sale, for, in either case payment of money would be a complete satisfaction of the teal purpose of the decree.

(2.) It was, however, urged that such a construction would conflict with the sections of the Transfer of Property Act relating to the passing of decrees in mortgage suits. No doubt according to them an account must be taken of all payments to the mortgagee by the mortgagor in ascertaining the amount for which sale should be ordered. If, however, Section 258 of the Civil P. C. is to be treated as among the sections bearing upon the execution of mortgage decrees also that section as well as the sections of the Transfer of Property Act relating to the taking of account should be read together and the construction which will give effect to both.--those in the Transfer of Property Act as well as those in the Civil P. C.- should be adopted. The basis of the decision of the majority of the Full Bench in Mallikarjunadu Setti V/s. Lingamurti Pantulu I.L.R. 25 M.P. 244, &c. is that with a few exceptions the provisions of the Civil Procedure Code relating to execution of decrees are applicable to mortgage decrees contemplated by the Trarsfer of Property Act. There is nothing in the language of Section 258 of the Civil P. C. and of the provisions of the Transfer of Property Act which involves any real conflict between the respective provisions. Only such payments as can be taken notice of by the executing Court in accordance with Section 258 of the Civil P. C. will be treated as payments going into the account. Reference was next made to the case of a mortgagee in possession of the mortgaged property and in receipt of the usufruct even after the mortgage decree was passed. No doubt under Section 22 of the Indian Limitation Act such receipts are treated as payments to the mortgagee. But this special provision for the purpose of limitation would not make the sums so received payments within the meaning of Section 258. Such receipts cannot grammatically be held to come within the words "money payable under the decree" in Section 258. They are receipts by the mortgagee from the property in his possession by virtue of the contract and are altogether outside the purview of the section which, refers to transactions taking place out of Court between the decree-holder and the judgment-debtor after the decree.

(3.) Overruling the decision in Mallilcarjuna Sastri V/s. Narasimha Rao I.L.R. 24 M.P. 412 we answer the question submitted in the affirmative.