VISHNU MORESHWAR DABHOLKAR Vs. SADASHIV SHIVRAM NISALE

JUDGEMENT

(1.) In Suit No. 333 of 1920 in the Court of the First Class Subordinate Judge at Ahmednagar, a compromise decree was passed in which it was directed that a sum of over Rs. 32,000 with interest should be paid by annual instalments of Rs. 5,000 a year. Clause 7 was as follows :-- In default of payment of any two instalments the plaintiff should treat that the concession regarding the instalments that were allowed was not availed of and should forthwith recover the whole amount due to him at that time including principal and interest by sale of the mortgaged property in suit and of the below-mentioned property given as security and mentioned in clause 8 through Court.

(2.) Clause 8 was as follows:- As the value of the property given as security and mentioned in the mortgage deed is not sufficient to pay off the whole amount due by the defendants, the same together with the immoveable property of the defendants situate at Mauje Khedle Parmanand in the taluka of Nerase have been given as security for the whole of this amount.

(3.) As the defendants did not pay the instalments as directed by the decree, the plaintiff took out a darkhast, and as is not uncommon in such cases, the defendants raised all sorts of technical objections to their being compelled to pay what they had agreed to be ordered to pay under the compromise decree. They contended that the decree could not be executed unless a final decree was passed. They also contended that the property referred to in clause 8 of the decree could not be sold at all in execution of the decree. We see no reason why we should consider that the decree was a preliminary decree which could not be executed unless a final decree was passed. It was a decree for a specific sum payable by instalments with a direction that if two instalments fell into arrears, the plaintiff could sell the mortgaged property. If it had been intended that the decree should be considered as a preliminary decree, then a direction would have been given that on default the plaintiff should be at liberty to apply for final decree. But in the absence of such a direction, there would be nothing to prevent the plaintiff, when the defendants fell into arrears, making an application to execute the decree by sale of the mortgaged property under clause 7 of the decree.