SHANKAR KONDAPPA SHAHGADKAR Vs. GANPAT SHANKARSHET AGARKAR

JUDGEMENT

(1.) The plaintiff in this casa brought a suit for specific performance of an agreement to obtain a mortgage bond. The suit ended in a compromise decree under which the plaintiff was to recover the amount from the defendant within six months by sale of the property which was intended to have been mortgaged. The plaintiff in execution sought to recover the amount by sale of the property.

(2.) It is urged in this second appeal, first, that the charge was created under the compromise decree, and the plaintiff ought to bring a separate suit to enforce the charge, and that the decree in the form in which it was passed could not be executed. Secondly, it is argued that the judgment-debtor had no disposing power as was held in the case of Gyanoba Govindshet Urune V/s. Shankar Kondappa Shahagadkar (1918) S.A. No. 632 of 1917. decided on October 17 1918, by Shah J. (Unrep.), and therefore, the property could not be attached under Section 60 of the Civil Procedure Code, and sold in execution of the decree.

(3.) With regard to the first point, it was held in Ambalal V/s. Narayan that where a money decree imposing a liability on the defendant to pay a sum of money to the plaintiffs, declared that the plaintiffs had a first charge and a lien on certain immoveable property of the defendant and the plaintiff applied in execution proceedings for sale of the property charged, the plaintiff had a right to bring the property charged to sale in execution proceedings, and that it was not necessary to bring a separate suit for the sale of the property. A similar view was taken in Ramaswami Naidu V/s. Subbaraya Tevar . In such a case it is not necessary that a final decree should be passed, for Order XXXIV, Rule 5, of the Civil Procedure Code, does not apply to an award decree or to a compromise decree if it is clear from the decree, that the sale was ordered and it was in itself a final decree: see Nripendranath Chaitarji V/s. Jhumak Mandar (1923) I.L.R. 3 Pat. 221; Hemendra Lal Singh Deo V/s. Fakir Chandra Dutta (1923) I.L.R. 50 Cal. 650; and Sital Singh V/s. Baijnath Prasad (1922) I.L.R. 44 All. 668.