M R M A SUBRAMANIAN CHETTIAR Vs. HONPRAJARAJESWARA SETHUPATHI ALIAS MUTHURAMALINGA SETHUPATHI AVARGAL RAJA OF RAMNAD

JUDGEMENT

(1.) The question raised in the appeal, which is of some importance is, when immoveable property has been given by the judgment-debtor as security for the due performance of a decree pursuant to an order made under Order XLI, Rule 5(3)(c), Civil Procedure Code, whether that property can be realized by the decree-holder in execution or can only be realized in a separate suit. We have been referred to a decision in Tokhan Singh v. Girwar Singh (1905) I.L.R., 32 Calc., 494 that a separate suit is necessary. But the learned Judges who decided that case proceeded upon the prohibition in Section 99 of the Transfer of Property Act, as it then was, against bringing mortgaged property to sale except by means of a suit under Section 67 of that Act. That section has been repealed and the prohibition has been limited in Order XXXIV, Rule 14, Civil Procedure Code, and that decision is therefore inapplicable to the present case and affords no reason for refusing to follow the earlier decision of the same Court in Shyam Sundar Lal v. Bajpai Jainarayan (1903) I.L.R., 30 Calc., 1060. Further in that case the point was not taken before the learned Judges that such a sale comes within the provisions of Section 47 (formerly Section 244), Civil Procedure Code, which provides that: all questions arising between the parties to the suit in which the decree was passed, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit.

(2.) If we look at the question on principle and independently of authority, it is difficult to see how the realization of the security given to the Court pursuant to an order of the Court, for the purpose of satisfying the decree-holder can possibly be said to be a matter not relating to the execution, discharge or satisfaction of the decree, or not to be a question arising between the parties to the decree. The fact that the bond is given to the Court does not make it a question arising between the judgment-debtor and a third party so as to take it out of the section. The bond was given to the Court in Sadasiva Pillai v. Ramalinga Pillai (1875) 2 I.A., 219 at p. 233, and yet the case was held to come within the section of the Code corresponding to Section 47. If the section is applicable, then that being the special provision governing these matters, it would have overridden any general provision contained in Section 99 of the Transfer of Property Act. We are therefore clearly of opinion that apart altogether from authority it is a matter arising in execution within the meaning of Section 47, Civil Procedure Code. The effect of immovable property being given as security is something more than attachment because it makes the property applicable solely in discharge of the judgment-debt and not liable to rateable distribution among other judgment-creditors. But the realization by the Court of such security in execution is of the same nature as sale by the Court of the immoveable property attached, that is to say, it transfers the right, title and interest of the judgment-debtor who has given security. There is no need in such a case that there should be anything in the nature of a mortgage suit for sale under Section 67 of the Transfer of Property Act with all the expense and delay which would be thereby involved. It would be a most mischievous state of law if such a thing were necessary and it would fetter the discretion of the Court in accepting immoveable property as security for the execution of the decree. This view is in accordance not only with Shyam Sundar Lal v. Bajpai Jainarayan (1903) I.L.R., 30 Calc., 1060, but also with Mukta Prasad v. Mdhadeo Prasad (1916) I.L.R., 38 All., 327, and the dictum of two learned Judges of this Court in Saminatha Pathan v. Sornatha Ammal . What is more important is, that it is strongly supported by the decision of their Lordships of the Judicial Committee in Sadasiva Pillai v. Ramalinga Pillai (1875) L.R., 2 I.A., 219, where security of immoveable property given for mesne profits which were not awarded by the decree was held to be realizable in execution for such mesne profits, instead of leaving the parties to recover them in a separate suit. Their Lordships observe at page 232 that the security bonds were: proceedings in Court importing a certain liability to be enforced in the suit against the defendant to that suit.

(3.) They further observed at page 233 that the liability incurred under those bonds amounts to a "question relating to the execution of the decree" within the meaning of the latter clause of Section 11 of Act XXIII of 1861. If the question in that case was one relating to the execution of the decree, a fortiori it is so in the present case where security has been furnished to the Court pursuant to an order of Court under Order XLI, Rule 5(3)(c), Civil Procedure Code. It is unnecessary in this case to deal with cases of security given by third parties under Section 145, Civil Procedure Code, or with the decisions on that question.