Vaidhinathasamy Iyer vs Somasundram Pillai

The decree in the case under reference contains an order for the sale of the mortgaged property and also an order for the recovery personally

from the judgment-debtor and from his other property of what may remain undischarged by the sale proceeds of the mortgaged properly. In

Mallikarjuna Saslri v. Narasimha Rao ILR 24 M. 412 it was held by a Division Bench of this Court that Section 258 of the CPC was inapplicable

to such a case. In a case, however, where a, similar question was raised in regard to Section 295, C.P.C., Collins, C.J. and Benson, J. had held

that a person who had obtained a decree for the sale of mortgaged property and who had not proceeded against such property was entitled to

claim rateable distribution under that section as if he was the holder of a decree for money, Kommachi Kather v. Pakker and Ors.. ILR 20 M. p.

107 Following this decision Boddam and Sanharan Nair, J.J. in C.M.A. No. 4 of 1904 14 M.L.J. (Rec. Cas.) 31 held that Section 230, C.P.C.,

was applicable to a decree containing an order for the sale of the mortgaged property. The words in Section 295 of the CPC and in Section 230

so far as the point under discussion is concerned are ""decree for money"" and ""decree for payment of money"" respectively. There can be no doubt

that in some parts of the Code as for instance in Sections 220 and 222 the language implies that the framers of the sections intended a distinction

between decrees merely directing payment of money and decrees ordering the sale of mortgaged property. If this distinction is to be maintained

with reference to Sections 230, 258 and 295 of the Code, perhaps the course suggested in the order of reference riz., that until the remedy against

the Immovable property is exhausted the decree should be treated as not a money decree, would be the one which would enable the distinction to

be kept up. But that course would obviously detract from the intention of the legislature in cases where the decree contains an order for sale as

well as an order for payment of money with reference to every one of the three sections mentioned. So far as Section 230 is concerned the

execution may be prolonged beyond the 12 years prescribed. So far as Section 258 is concerned payments or adjustments clearly within the

purview of the section as respects the direction to pay the money would be rendered nugatory. And as regards Section 295, the inconvenience

pointed out in Kommachi v. Pakker and Ors. ILR 20 M. 107 will arise. Again the reason of the provision in Section 258 is that in cases where the

decree is not for the delivery of specific property, that is to say, in cases where the satisfaction of the decree involves nothing more than payment of

money, disputes connected with such payments or adjustments out of Court should be heard and determined in execution within a very limited

time; and the party failing to obtain such determination should in execution be precluded from relying on them. This reason would seem to be as

much applicable to a payment or adjustment with reference to a decree in which there is nothing more than an order for the sale of mortgaged

property. The better view seems to be in the language of Tottenham and Agnew, J.J. in Hart v. Tara Prasanna Mukherji ILR 11 C.P. 718. that

every decree by virtue of which money is payable is to that extent a decree for money and that Section 258 must be held applicable to cases in

which the decree is as here and even to cases where there is no direction to pay personally at all but only an order for sale, for, in either case

payment of money would be a complete satisfaction of the teal purpose of the decree.

It was, however, urged that such a construction would conflict with the sections of the Transfer of Property Act relating to the passing of

decrees in mortgage suits. No doubt according to them an account must be taken of all payments to the mortgagee by the mortgagor in

ascertaining the amount for which sale should be ordered. If, however, Section 258 of the CPC is to be treated as among the sections bearing

upon the execution of mortgage decrees also that section as well as the sections of the Transfer of Property Act relating to the taking of account

should be read together and the construction which will give effect to both.--those in the Transfer of Property Act as well as those in the Code of

Civil Procedure- should be adopted. The basis of the decision of the majority of the Full Bench in Mallikarjunadu Setti v. Lingamurti Pantulu ILR

25 M.P. 244, &c. is that with a few exceptions the provisions of the CPC relating to execution of decrees are applicable to mortgage decrees

contemplated by the Trarsfer of Property Act. There is nothing in the language of Section 258 of the CPC and of the provisions of the Transfer of

Property Act which involves any real conflict between the respective provisions. Only such payments as can be taken notice of by the executing

Court in accordance with Section 258 of the CPC will be treated as payments going into the account. Reference was next made to the case of a

mortgagee in possession of the mortgaged property and in receipt of the usufruct even after the mortgage decree was passed. No doubt u/s 22 of

the Indian Limitation Act such receipts are treated as payments to the mortgagee. But this special provision for the purpose of limitation would not

make the sums so received payments within the meaning of Section 258. Such receipts cannot grammatically be held to come within the words

money payable under the decree"" in Section 258. They are receipts by the mortgagee from the property in his possession by virtue of the contract

and are altogether outside the purview of the section which, refers to transactions taking place out of Court between the decree-holder and the

judgment-debtor after the decree.

Overruling the decision in Mallilcarjuna Sastri v. Narasimha Rao ILR 24 M.P. 412 we answer the question submitted in the affirmative.