AUDIPURANAM PILLAY Vs. GOPALASAMY MUDALY

JUDGEMENT

(1.) The plaintiff holding an usufructuary mortgage dated the 27 August 1901, containing a covenant to pay, sued for sale on his mortgage and, on the 16 December 1905, obtained a decree in the usual form fixing a term of 6 months for payment of the money due and directing a sale in default of payment. The mortgagors did not pay on the date fixed for payment, the 16 June 1906, but some months later, on the 22 November, 1906, paid the principal money into Court with an application in the form of an application for execution of a decree and obtained delivery of possession of the mortgaged property. Till then, the mortgagee remained in possession but had not, when he was ousted, applied for an order for sale under Section 89 of the Transfer of Property Act.

(2.) He refused to receive the money and now contends that the Court had no power in execution proceedings to permit the mort gagors to pay it into court and to direct delivery of possession to them, they not having paid on or before the 16 June 1906.

(3.) Now according to the view taken by the majority of a Full Bench of this Court in Mallaikarjunadu Setti V/s. Lingamurthi Pantulu, etc. (1902) I.L.R. 25 M. 244 at p. 282 a decree for sale under Section 88 of the Transfer of Property Act is a final decree, and all subsequent proceedings are proceedings in execution of that decree, and to them the provisions of the Civil Procedure Code are, so far as they may be applicable, to be applied.