AMBALAL BAPUBHAI GUJARATI Vs. NARAYAN TATYABA BHOSALE

JUDGEMENT

(1.) The words where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, in Order XXXIV, Rule 14, of the Civil Procedure Code, mean that the decree should relate to the payment of money in satisfaction of a claim arising under the mortgage, i.e., mortgage independent of the decree. It can have no application where the charge or the mortgage is created by the decree and where the direction as to payment of money is in no sense in respect of a claim arising under the charge or the mortgage. Shah J. 1. In consequence of the difference of opinion between the learned Judges who heard this appeal, the following question has been referred to me under Section 98 of the Code of Civil Procedure :-- What is the correct construction of the decree 1 Does it give the decree holder the right to bring the property charged to sale in execution proceedings ?

(2.) The decree in question was passed by consent on the Original Side of this Court in a suit in which the plaintiff claimed to recover a certain sum of money from the defendant on an adjustment. The material terms of the decree are these:-- This Court by and with such consent doth order that the defendant do pay to the plaintiffs the sum of Rs. 35,789-6-11 for debt and interest and the coats of this suit when taxed and noted in the margin hereof and further simple interest at the rate of 6 per cent, per annum upon the amount of the said judgment from the date hereof until payment and this Court with the like consent doth declare that the plaintiffs have a first charge and a lien (on certain immoveable property described) to secure repayment of the amount. of this decree and interest thereon....Any of the parties hereto is at liberty to apply to this Court as there may be occasion.

(3.) The learned First Class Subordinate Judge of Poona to whoso Court the decree was transferred for execution held that the property could not be sold in execution in the absence of a direction in the decree as to the enforcement of the charge. This view was contested in the appeal by the plaintiffs and it is on this question that there has been a difference of opinion. On a consideration of the terms of the decree I am of opinion that the decree-holder has the right to bring the property charged to sale in execution proceedings.