BECHU SINGH Vs. BICHHARAM SAHU

JUDGEMENT

(1.) This is an appeal on behalf of some of the defendants in a mortgage suit described as the judgment-debtors, against an order absolute for sale made under section. 89 of the Transfer of Property Act. So far back as 1897, the mortgagees sued to enforce the securities executed in their favour on the 6 July and 5 September 1893. The Court of first instance made the usual mortgage decree on the 25 November 1897. An appeal was then preferred to this Court and during the pendency of the appeal the plaintiffs and defendants settled the matters in controversy between them. On application to this Court, the decree of the Court of first instance was discharged, and a fresh decree was drawn up in accordance with the terms of the compromise, under which the appellants mortgagors agreed to pay Rs. 12,151 with interest, in several instalments. The compromise further provided that in case of non-payment of any two consecutive instalments, the mortgagees would be entitled to realise the entire decretal money with interest at 12 per cent, per annum. It was explicitly stated also that the sum due was to be realised by sale of the mortgaged property in execution of the decree and if the sale proceeds of the mortgaged properties proved insufficient, the mortgagees were to be entitled to realise the balance of the decree from the person and other properties of the defendants. This consent decree was made on the 8 May 1899. On the 15 June 1906, the mortgagees applied to the Subordinate Judge for an order absolute under Section 89 of the Transfer of Property Act, on the allegation that three of the instalments had been regularly paid but default had been made in the payment of the subsequent instalments. The defendants mortgagors opposed the application on the ground that the plaintiffs had no right to obtain an order absolute, and that it was obligatory upon them to institute a separate suit to enforce the compromise, although it was embodied in the decree. The Subordinate Judge overruled these objections and on the 12 January 1907 made the decree absolute. The mortgagors have now appealed to this Court and on their behalf, it has been contended, first, that the sole remedy of the mortgagees is to sue upon the compromise, and secondly, that they are not entitled to ask for an order absolute under Section 89 of the Transfer of Property Act, the provisions of which apply only to a decree made in strict accordance with Section 88. In answer to this argument, it has been contended on behalf of the respondents mortgagees, first, that the appeal is incompetent inasmuch as it has been preferred as an appeal from an order in execution proceedings and Court fees paid on the memorandum of appeal on that footing, and secondly, that the Court has inherent power to make an order absolute when the mortgagee asks for such an order, even though the decree is not strictly in accordance with Section 88 of the Transfer of Property Act. We must first consider the preliminary objection taken by the respondents as to the competency of the appeal and then examine the validity of the grounds on the merits urged by the appellants as well as the respondents.

(2.) As regards the preliminary objection to the competency of the appeal, the answer must depend on the true nature of an order absolute for sale under Section 89 of the Transfer of Property Act. If it is treated as the final order in the suit, it is in the nature of a decree and in this view, an appeal, by which its propriety is questioned, must be regarded as an appeal against an original decree, and the Court fees on the memorandum of appeal should accordingly be paid ad valorem. On the other hand if the decree nisi in a mortgage suit be treated as the final decree which terminated the litigation and the order absolute as merely the initial order in proceedings in execution of the decree nisi, an appeal against an order absolute would rightly be deemed an appeal from an original order and Court fees would have to be paid on the memorandum of appeal accordingly. The former of these conflicting views was adopted by this Court in the case of Akikunnissa Bibee V/s. Roop Lal Das 25 C. 133, while the latter was adopted by the Allahabad High Court in Kedar Nath V/s. Lalji Sahai 12 A. 61 and Oudh Behari Lal V/s. Nageswar Lal 13 A. 278. The view taken by this Court in the case mentioned has been consistently followed for many years passed. Thus in Srikanta Pal v. Sheikh Yesuddin 1 C.W.N. ccix, it was ruled that an appeal against an order absolute in a mortgage suit is not an appeal against an order under Section 244, C.P.C.; the Court further declined to allow the appellant an opportunity to amend the memorandum of appeal and to pay additional Court fees at the hearing. Again in Pramotha Chandra Roy V/s. Khetra Mohan Ghose 29 C. 651, it was ruled that proceedings under Section 89 of the Transfer of Property Act are proceedings not in execution of a decree, but in continuation of the original suit, and an appeal from an order absolute made under that section lies under the provisions of Section 540 of the Civil P. C. as an appeal from original decree. Precisely to the same effect are the decisions in Syed Mehdi Hussain V/s. Beechamkoer (Appeal from Original Decree No. 33 of 1905 decided by Brett and Mitter, JJ., on the 22 December, 1904), Charu Chandra Mitter V/s. Vagiratha Prosad, (Appeal from order No. 553 of 1907 decided by Mitter and Caspersz, JJ., on the 16 March 1903), Kedar Nath Hazra V/s. Norendra Nath Roy (Appeal from order No. 75 of 1902 decided by Maclean, C.J., and Stevens, J., on the 25 August 1902,) and Hari Prosad Singh V/s. Surendra Mohan Sircar (Appeal from Original Decree No. 564 of 1908, decided by Caspersz and Doss, JJ., on the 7 December 1908). In all these cases, time was allowed to the appellant, who had misdescribed the appeal and filed it on a memorandum bearing insufficient Court fees to enable him to comply with the orders of this Court. In one instance, the order was not carried out and the appeal was dismissed. In the other instances, the order was carried out and the appeals were heard on the merits. We further find that in one case Moulani Mahata V/s. Doman Singh (Appeal from order No. 529 of 1906) when the appeal was admitted, the question of its competency was reserved but at the hearing, the attention of the Court does not appear to have been invited to the point and the appeal was dismissed on the merits. It is clear, therefore, that although in some of the earliest cases, as for instance in Ajudhia Pershad V/s. Buldeo Singh 21 C. 818, which was heard as an appeal from order, the point was overlooked, ever since the decision of this Court in Akikunnissa Bibee v. Roop Lal 25 C. 133, the rule has been uniformly followed that an order absolute for sale under Section 89 of the Transfer of Property Act is a decree and appealable as such. In our opinion, there can be no question that upon a true construction of Section 89 of the Transfer of Property Act, this view is right, and we are unable to adopt the contrary rule laid down by the High Court of Allahabad. We are fortified in this opinion by the provisions of the Code of Civil Procedure, 1908, by which the sections of the Transfer of Property Act relating to procedure in mortgage suit have been repealed. Order XXXIV, Rules 4 and 5, show that what was previously described as the decree nisi is in future to be treated as the preliminary decree in a suit for sale, and what was previously described as the order absolute is henceforth to be described as the final decree in a suit for sale. It is manifest that the Legislature has now approved of the view adopted by this Court as to the true character of the order absolute for sale in a mortgage suit, and this circumstance may be legitimately relied upon in support of our view, according to a well-known rule for construction of statues explained by this Court in Jogendra Chandra V/s. Sham Das 9 C.L.J. 271; (1909) 1 I.C. 168 (ante). There has been in substance the re-enactment of the provisions of the Transfer of Property Act with such verbal alterations as to terminate the controversy which had arisen on their constructions and to afford a legislative recognition of the settled judicial construction adopted by this Court. We must hence adhere to the view, that an application for an order absolute under Section 89 of the Transfer of Property Act is not an application for execution of a decree, that the order absolute is itself not an order in execution proceedings, that in its essence it is the final decree for sale and is consequently appealable as such. The preliminary objection, therefore, as to the incompetency of the appeal is well founded and must be upheld. We may add that the learned Vakil for the appellants asked for an opportunity to amend the memorandum of appeal and to pay additional Court fees. But, we have not thought it desirable to prolong the litigation further by a postponement to enable him to do so, because we are satisfied, for reasons to be presently stated, that there is no substance in the appeal which must consequently fail not merely on the preliminary ground but also on the merits.

(3.) The first point taken on behalf of the appellants is to the effect that the only remedy of the mortgagees is to enforce the compromise by a separate suit. In support of this view, reference is made to the decision of the Allahabad High Court in Kashi Prasad V/s. Sheo Sahai 19 A. 186. That decision, however, is clearly distinguishable, as it refers to the validity of a compromise by which the terms of a decree are sought to be varied by the parties in the course of execution proceedings, while here the decree with which we are concerned has never been varied, and the mortgagees merely seek to enforce it strictly according to its terms. There can be no question that the decree directs the sale of the mortgaged properties in execution in the event of the failure of the mortgagors to pay two consecutive instalments. If the facts by the mortgagees are true this contingency has happened and they are consequently entitled to execute the decree without recourse to another suit. The first ground of appeal must consequently be overruled.