(Machullathil) Chandukutty Nayar vs Kuruvathancheri Keezana Narayana Nayar and Others

Krishnan, J.—This civil miscellaneous second appeal arises in execution of a decree the construction of which is too question before me.

The 5th defendant had obtained a usufructuary mortgage from defendants Nos. 1 to 4 of a property belonging to their tarwad and they took back

the property on a kychit agreeing to pay rent the plaintiff got an assignment of the right of the 5th defendant. In the kychit it is provided that if any

arrears of rent fell due those arrears would be a charge upon the equity of redemption of the property mortgaged. As arrears of rent accrued due,

the plaintiff brought a suit not only for such arrears but also to eject the defendants from possession of the property and the plaintiff got a decree. It

is the construction of that decree, which is before me. The defendants alleged that they made certain improvements on the property while they

were in possession, and they claimed in that suit the value of the improvements. The decree provided (1 that plaintiff do deposit in Court the value

of improvements Rs. 97-10-10 to the credit of the 4th defendant, (2) defendants Nos. 1 do 4 to surrender to the plaintiff the plaint property

described in the Schedule with the improvements, (b) defendants Nos. 3 and 4 do pay plaintiff arrears of rent Rs. 55-5-0, costs Rs. 17-15-0 and

future rent at Rs. 15-10-0 per year till date of possession or till the expiry of three years from the date of the decree whichever is earlier, (4) the

value of improvements was allowed to be set off in execution and (5) the plaintiff shall recover after three months from the date of decree the

deficit; if any, after set off, by sale of the jenm and other rights of the tarwad of defendants Nos. 1 to 4 over the plaint property. The plaintiff''s have

obtained possession of the property in ejectment by executing the decree. They are now seeking by execution of the decree to get what they claim

to be the amount payable to them under the lastol. (5) of the decree by sale of the equity of redemption of the plaint property. They are met by the

defence that Clause (5) is only a preliminary mortgage decree and is not executable as such and that the plaintiff should have obtained a final

executable decree passed in his favour in the case. The first Court gave effect to this contention and dismissed the plaintiff''s application for

execution. The Subordinate Judge on appeal has held that this clause is not in the nature of a preliminary decree at all but is an executable decree,

and as such the plaintiff is entitled to ask for the sale of the equity of redemption of the plaint property for the amount now due to him under the

decree. After hearing the arguments of the learned vakils on both sides, I am inclined to think that the Subordinate Judge''s view is correct. In the

suit it was pleaded that the defendants were not personally liable for any arrears of rent and that the plaintiff was entitled to get those arrears only

from the lands on which the arrears had been charged. Apparently it is because of that plea that the 5th clause in the decree is worded in the

manner it is. It provides that any deficit in the arrears of rent after they are set off against the value of improvements should be recovered from the

property, meaning thereby that the defendants are not to be personally liable for such sums. I do not consider Clause (5) to be a mortgage-decree

at all. It is in the nature of a money decree which the decree-holder is authorized to execute against the property. We do not find any of the

ordinary provisions of a preliminary mortgage-decree in it. There is no direction to the mortgagor to pay money within a certain time and no

statement that if the money is not paid, the property would be sold and there is no direction to take accounts to ascertain the amount due. All that

is left to execution. Even the set-off itself is ordered to be allowed in execution. The decree, (here-fore, seems to me to be, as the Subordinate

Judge holds, an executable decree; it does not require the passing of a final decree to make it executable. It is contended that if this view is correct

the plaintiff should attach the property before he can sell it. That, however, does not seem to be necessary in this case. It is not said that any

persons have obtained any right in this property which can be pleaded against the plaintiff''s right to proceed against it for the payment of the

decree amount. As the decree itself makes the property liable it seems to me it is not necessary to insist upon the property being again attached.

Attachment can be dispensed with and the property sold in execution of the decree. The order of the Subordinate Judge is, therefore, right. The

civil miscellaneous appeal fails and is dismissed with costs.