Lachman Ojha vs Chariter Ojha and Others and Sheopani Ojha and Others

Mullick, J.—This is a second appeal which raises an interesting point of law. The execution creditor before us is one Lachman Ojha, who has got a money decree against the respondent Chariter and others. Now, Chariter had a decree against Radha, Sheodeni and others, which in execution of his decree Lachman Ojha attached. Lachman''s claim against Chariter is about Rs. 500, while the decree which Chariter has against Radha and others is one for costs amounting to Rs. 278-8-0 and for mesne profits which have not yet been ascertained, but which are estimated to be of'' the value of Rs. 11,000. Lachman Ojha applied in the Court of the Munsif for permission to attach and sell Chariter''s decree. The Munsif held that the decree was Immovable property within the meaning of Section 60, Civil Procedure Code, that the provisions of Order XXI, Rule 53, which prohibited the sale of decree, for payment of money were not applicable and that, therefore, the sale could proceed. The decree was accordingly sold and Lachman Ojha has satisfied his claim by purchasing the decree himself.

The case then went on in appeal to the Subordinate Judge, who look a different view and held that Chariter''a decree was a money decree within the meaning of Order XXI, Rule 53, Civil Procedure Code, and that it was not open to Lachman Ojha to sell that decree.

The matter comes before us in second appeal by the creditor.

The first contention is that the learned Subordinate Judge is wrong in holding that the decree now under consideration is a decree for money. It is contended that the decree is a decree for Immovable property which is saleable under the Civil Procedure Code.

Now it is necessary to examine what was the suit in which Chariter''s decree was made. It appears that Chariter was a mortgagee in possession of certain lands. Some third party brought a suit against the mortgagor on the footing of another mortgage, obtained a decree and took possession of the mortgaged lands. Chariter was then obliged to bring a suit against his mortgagor as well as the persons who had obtained the decree for possession, for a declaration that the above decree was collusive and for recovery of, possession of the property, which had been mortgaged to him by the mortgagor. In the alternative he claimed that if his prayer for recovery of possession was not allowed, his mortgage claim which amounted to Rs. 1,679 must be satisfied by the persons who had taken possession of the mortgaged property. The decree in appeal in that suit was that Chariter would be entitled to recover possession as prayed for, unless the persons who were in possession redeemed his mortgage within a certain time. There was also a decree for costs and mesne profits in favour of Chariter.

It appears that the defendants in that suit availed themselves of the opportunity to redeem and paid Chariter off, so that the only part of Chariter''s decree, that is, now outstanding, is that which relates to costs and mesne profits. It is this decree that Lachman Ojha seeks to sell in execution of his decree against Chariter.

It is contended that as the decree was primarily a decree for recovery of possession of lands coupled with an alternative condition as to redemption, it was a decree for Immovable property. In my opinion that contention does not apply to the circumstances of this case. Here the only decree that is now outstanding is the decree for costs and for mesne profits. Now we know that a decree for mesne profits is a decree for money within the meaning of Order XXI, Civil Procedure Code, and it seems to me that the only procedure that the decree-holder before us can legally take is to attach that decree and to execute it under the provisions of Order XXI, Rule 53.

The learned Counsel who appears for the appellant draws our attention to Vasudeva Ravi Varman v. Narayana Pattar 24 M. 341. In that case there was an order in appeal dismissing the suit and entitling the defendant to recover possession. The defendant applied u/s 583 of the CPC of 1882 to recover possession by way of restitution. One of his creditors thereupon applied to the Court to attach the defendant''s right to realize mesne profits in respect of the lands, which also he was entitled to recover by way of restitution. Their Lordships of the Madras High Court held that as the decree in favour of the defendant did not expressly give him a right to recover mesne profits but merely dismissed the suit against him, it could not be said that there was any decree in existence for payment of money and that Section 273, Civil Procedure Code, which corresponds to Rule 53, Order XXI, of the present Code, did not apply to the sale of the right to recover mesne'' profits. They held, therefore, that that right was Immovable property and could be sold. It is to be noticed that their Lord-ships did not base their decision upon the fact that the right to mesne profits was coupled with the right to recover Immovable property. Similarly in the present case, so far as Chariter''s decree gave him an alternative right to recover possession of the mortgaged property, that right is not to be taken into consideration in determining the question as to whether the decree is or is not a decree for an Immovable property. The basis of their Lordships'' decision was that there was no decree in existence expressly giving a right to recover mesne profits, but here there was a decree giving such a right and the ruling of their Lordships is, therefore, in favour of the respondents before us and not against them. This would seem to be sufficient for the disposal of this second appeal.

It is, however, contended that if the decree was Immovable property, then no proceeding u/s 47, Civil Procedure Code, is competent, but that the proper provision for setting aside the sale would be Rule 90 of Order XX. The appellant is treading on rather dangerous ground here, because if it is held that the decree is Immovable property to which the provisions of Order XXI, Rule 90, apply then there is no second appeal, and the appellant has no right to come here at all. However upon the view that we take, the decree is, in our opinion, not one for Immovable property, but is one for money within the meaning of Order XXI, Civil Procedure Code, and, therefore, the proper course for the attaching decree-holder is to proceed under Rule 53 of Order XXI. The learned Subordinate Judge''s decision is correct and the appeal will be dismissed with costs.

Thornhill, J.

I agree.