ABIR PARAMANIK Vs. JAHAR MAHMUD MANDAL

JUDGEMENT

(1.) This appeal arises out of a suit brought on the 18 September 1898 by the plaintiff, mortgagee on his mortgage. On the 20 February 1900, the parties came to an amicable adjustment of their dispute, and filed a petition of solehnamah. By that solehnamah the defendant agreed that a certain sum of money found to be due to the plaintiff should be paid in instalments up to the year 1312, the instalments being specified in the solehnamah. He further agreed that the mortgaged property should be sold in default of payment. The Court passed an order on the same day, the 20 February 1900, directing that a decree be drawn up in terms of the solehnamah. The decree was actually drawn up on the 23 March following. The solehnamah was treated as a part of the decree, and the decree stated that the amount should be payable in six years, and that, on failure to pay any one instalment, the whole amount would become due and the mortgaged property would, in the meantime, remain hypothecated. The decree was not in proper form, as it did not direct a sale of the hypothecated property on the failure of the defendant to comply with the other terms of the solehnamah.

(2.) When the decree-holder applied for execution of the decree, an objection was made by the judgment-debtor that no execution could be issued, unless the decree-holder obtained an order under Section 89 of the Transfer of Property Act directing the sale of the property. That objection was allowed. It is now contended before us, on behalf of the defendant, that his objection was wrongly allowed by the Court, and that the decree-holder ought to have appealed from that order.

(3.) Thereafter, the decree-holder applied for an amendment of the decree. Notice was issued on the judgment-debtor, and he objected to the amendment. The Court, after hearing both sides, came to the conclusion that the decree should be amended, and directed an amendment by insertion of words to the effect: "On failure of the defendant to pay the money covered by instalments, the mortgaged property should be sold for realisation of the amount." This was on the 27 February 1905. On the 3 November 1905, the decree-holder applied for an order absolute for sale, that is, for an order directing the sale of the property in terms of the decree, as amended, the judgement-debtor having failed to pay the instalments as contemplated by the solehnamah and the decree The application was opposed, but the Munsif held that there was no bar to the Court making an order absolute, and he made such an order.