Nripendranath Chatterjee and Others vs Jhumak Mandar and Others

Das, J.—The appellants are the decree-holders and they object to the order passed by the learned Subordinate Judge of Bhagalpur on the 24th July, 1922. The appellants brought a suit on a mortgage and the dispute between them and the respondents who are the judgment-debtors were referred to the arbitration of one Babu Rajendra Nath Singh. The arbitrator in due course made his award and the learned Subordinate Judge on the 19th December, 1921, passed a decree in terms of the award. The material portion of the decree is in these words: "It is ordered and decreed that a decree be given to the plaintiff for Rs. 35,000 principal and Rs. 35 319-10-1 1/2 interest in all for Rs. 70,319 10-104 according to the corrected award, dated 16th December, 1921, and that the decretal amount be realized by sale of the mortgaged properties mentioned in the mortgage bond and detailed below, in execution of decree, without bringing a fresh suit." This decree was passed, as I have said, on the 19th of December, 1921, On the 27th February, 1922, the decree-holders presented an application for execution of the decree; and, by their application, they asked that a notice under Order 21, Rule 66 of the Civil Procedure Code, be issued against the judgment-debtors and the mortgaged properties be then put up for sale and the decretal amount of the decree-holders be realized therefrom. The learned Subordinate Judge rejected this application on two grounds : first, on the ground that a final decree under Order 34, Rule 5 not having been obtained, the decree was incapable of execution; and, secondly, that the decree-holders could not ask for execution of the decree unless and until decree-holder No. 2 surrendered possession of the mortgaged property.

In my opinion the judgment of the learned Subordinate Judge is wrong and should be set aside. I will first deal with the question, whether it was necessary for the decree holders to obtain a final decree under Order 34, Rule 5 of the Code. Now it is obvious to my mind that a decree under Order 34, Rule 5, C.P.C., could not be asked for unless a preliminary decree under Order 34, Rule 4, C.P.C., had been passed by the Court. The second part of Order 34, Rule 5 is in these words: "Where such payment is not so made, the Court shall, on application made in that behalf by the plaintiff, pass a decree that the mortgaged property, or a sufficient part thereof, be sold, and that the proceeds of the sale be dealt with as is mentioned in Rule 4." But this decree was never passed under Order 34, Rule 4, C.P.C., and therefore in my opinion it was not open to the decree-holders to apply for final decree under the provisions of Order 34, Rule 5. Mr. Yunus contends that a mortgage-decree is incapable of execution unless the final decree under Order 34, Rule 5 has been passed. With this contention I am unable to agree. Mr. Yunus concedes that compromise decrees stand on a different footing; but, in my opinion, there is no difference in principle between a compromise decree and a decree in terms of an award. The arbitrator passing an award is in no way bound by the provisions of Order 34, rule

C.P.C. In this case the arbitrator passed a decree for a sum of money and directed that that decree should be realised by sale of the mortgaged property. ID my opinion, the decree is enforceable as a decree passed by a competent Court, and it was not open to the learned Subordinate Judge dealing with this matter to say that the decree could not be executed unless the procedure indicated in Order 34, Rule 5, C.P.C., had been complied with. As I have already mentioned, it is quite impossible for a decree-holder to have recourse to the provision of Order 34, Rule 5, unless the decree is in terms of Order 34, Rule 4. The decree in the present case was not in terms of Order 34, Rule 4, and the objection is really to the terms of the decree as passed by the arbitrator; and this is an objection which was not open to the learned Subordinate Judge who was executing the decree.

The next point is that it was necessary for the decree-holder No. 2 to surrender possession of the mortgaged property before executing the decree. This question is entirely irrelevant to the present dispute between the parties and if the judgment-debtors are at all affected by the fact that the decree-holder No. 2 is still in possession of the property it is open to them to pursue their remedy in a different suit. So far as this matter is concerned the question does not arise in the present proceedings.

It appears that the learned Subordinate Judge came to the conclusion that it was necessary for the decree-holders to render an account before applying for execution of the decree. It was not really necessary for him to deal with this point because he had already come to the conclusion that the decree was incapable of execution. But lest this opinion of the learned Subordinate Judge should embarrass the present Subordinate Judge in any way we desire to say that the question of rendering account does not at all arise in the present proceeding. In the course of execution it is open to the judgment-debtors to take any objection which the law allows them.

I allow the appeal, set aside the order of the learned Subordinate Judge and direct that he should proceed with the execution.

The appellants are entitled to their costs in this appeal.

Ross, J.

I agree.