M.R.M.A. Subramanian Chettiar vs HON.P. Rajarajeswara Sethupathi alias Muthuramalinga Sethupathi Avargal Raja of Ramnad

John Wallis, Kt., C.J.—The question raised in the appeal, which is of some importance is, when Immovable property has been given by the

judgment-debtor as security for the due performance of a decree pursuant to an order made under Order XLI, Rule 5(3)(c), Civil Procedure

Code, whether that property can be realized by the decree-holder in execution or can only be realized in a separate suit. We have been referred to

a decision in Tokhan Singh v. Girwar Singh ILR (1905) Calc. 494 that a separate suit is necessary. But the learned Judges who decided that case

proceeded upon the prohibition in Section 99 of the Transfer of Property Act, as it then was, against bringing mortgaged property to sale except

by means of a suit u/s 67 of that Act. That section has been repealed and the prohibition has been limited in Order XXXIV, Rule 14, Civil

Procedure Code, and that decision is therefore inapplicable to the present case and affords no reason for refusing to follow the earlier decision of

the same Court in Shyam Sundar Lal v. Bajpai Jainarayan ILR (1903) Calc. 1060. Further in that case the point was not taken before the learned

Judges that such a sale comes within the provisions of Section 47 (formerly Section 244), Civil Procedure Code, which provides that:

all questions arising between the parties to the suit in which the decree was passed, and relating to the execution, discharge or satisfaction of the

decree shall be determined by the Court executing the decree and not by a separate suit.

If we look at the question on principle and independently of authority, it is difficult to see how the realization of the security given to the Court

pursuant to an order of the Court, for the purpose of satisfying the decree-holder can possibly be said to be a matter not relating to the execution,

discharge or satisfaction of the decree, or not to be a question arising between the parties to the decree. The fact that the bond is given to the

Court does not make it a question arising between the judgment-debtor and a third party so as to take it out of the section. The bond was given to

the Court in Sadasiva Pillai v. Ramalinga Pillai (1875) 2 I.A., 219, and yet the case was held to come within the section of the Code corresponding

to Section 47. If the section is applicable, then that being the special provision governing these matters, it would have overridden any general

provision contained in Section 99 of the Transfer of Property Act. We are therefore clearly of opinion that apart altogether from authority it is a

matter arising in execution within the meaning of Section 47, Civil Procedure Code. The effect of immovable property being given as security is

something more than attachment because it makes the property applicable solely in discharge of the judgment-debt and not liable to rateable

distribution among other judgment-creditors. But the realization by the Court of such security in execution is of the same nature as sale by the

Court of the Immovable property attached, that is to say, it transfers the right, title and interest of the judgment-debtor who has given security.

There is no need in such a case that there should be anything in the nature of a mortgage suit for sale u/s 67 of the Transfer of Property Act with all

the expense and delay which would be thereby involved. It would be a most mischievous state of law if such a thing were necessary and it would

fetter the discretion of the Court in accepting Immovable property as security for the execution of the decree. This view is in accordance not only

with Shyam Sundar Lal v. Bajpai Jainarayan ILR (1903) Calc. 1060, but also with Mukta Prasad v. Mdhadeo Prasad ILR (1916) All 327, and

the dictum of two learned Judges of this Court in Saminatha Pathan Vs. Soranatha Ammal, . What is more important is, that it is strongly supported

by the decision of their Lordships of the Judicial Committee in (1875) L.R. 2 I.A. 219 (Privy Council) , where security of Immovable property

given for mesne profits which were not awarded by the decree was held to be realizable in execution for such mesne profits, instead of leaving the

parties to recover them in a separate suit. Their Lordships observe at page 232 that the security bonds were:

proceedings in Court importing a certain liability to be enforced in the suit against the defendant to that suit.

They further observed at page 233 that the liability incurred under those bonds amounts to a ""question relating to the execution of the decree

within the meaning of the latter clause of Section 11 of Act XXIII of 1861. If the question in that case was one relating to the execution of the

decree, a fortiori it is so in the present case where security has been furnished to the Court pursuant to an order of Court under Order XLI, Rule

5(3)(c), Civil Procedure Code. It is unnecessary in this case to deal with cases of security given by third parties u/s 145, Civil Procedure Code, or

with the decisions on that question.

The second objection taken to the order under appeal is that it was for the enforcement of the security for a larger amount than that provided for

in the bond. Now we think that that bond has already formed the subject of adjudication because the property has been ordered to be sold for the

full decree amount and that order was allowed to become final. Further on the basis that this security was enforceable for the full amount of the

decree, the Court refused to enforce the decree personally against the judgment-debtor as it would have otherwise been bound to do, except to

the extent of Rs. 7,000, the balance of the decree amount over the estimated value of the Immovable property given as security. In these

circumstances we think the appeal also fails on this point.

In the result, the appeal fails and is dismissed with costs. The Civil Revision Petition is dismissed. As regards the Civil Miscellaneous Petitions

Nos. 1684 and 1685 of 1917 for stay no order is necessary.