NARAYANA AIYAR Vs. SINGARAVELU VANNIAN

JUDGEMENT

(1.) The decree sought to be executed is a mortgage decree passed before the present Code of Civil Procedure came into force. It is in the form (then usual) of a combined decree directing the defendants to pay a certain sum on or before a certain date, directing a sale of the mortgaged properties in default of payment, and also decreeing that the defendant do pay any deficiency that might arise if the sale proceeds proved insufficient to satisfy the amount decreed with interest and costs.

(2.) The decree was passed on the 8th October 1898. The mortgaged properties were sold on the 12th January 1903 and the sale was confirmed on the 17th February 1903. As the sale proceeds were insufficient the decree-holder filed several applications in execution between 1903 and 1912. He filed an execution application in 1906 and execution was ordered after notice to the judgment-debtors. This order is final and it cannot be contended in subsequent execution proceedings that the decree was not executable owing to the want of a final decree. Lakshmiammal v. Subramania Pillai (1913) 14 M.L.J. 103. It was ultimately dismissed for default of the decree-holder s appearance. Subsequent applications were put in, the last of which was allowed by the District Munsif, who was of opinion that it was not barred by limitation. On appeal the District Judge took the contrary view and dismissed it as barred.

(3.) Though the decree was irregular having regard to the provisions of the Transfer of Property Act we do not think it is open to the judgment-debtors to raise the question in execution proceedings. Raja of Kalahasti v. Varadachariar 21 M.L.J 1036 Abbaki v. Krishnayya I.L.R. 32 M. 534 and Dhinabandhu v. Masuda 16 C.L.J. 313 are clearly in point. As the decree specifically decreed that the defendants were to pay any deficiency that might arise, it was not necessary to obtain another separate decree or order under Section 90 of the Transfer of Property Act. Periasami Kone v. Muthiah Chettiar I.L.R. 38 M. 677.