(MACHULLATHIL) CHANDUKUTTY NAYAR Vs. KURUVATHANCHERI KEEZANA NARAYANA NAYAR

JUDGEMENT

(1.) THIS civil miscellaneous second appeal arises in execution of a decree the construction of which is too question before me. The 5 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 5 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 4 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 5 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.