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Subbaraya Rowthu Minda Nainar And Muthu ... vs Kuppusamy Aiyangar And Ors. on 12 February, 1909
cites
Mahomed Yusuf vs Abdur Rahim Bepari And Ors. on 3 July, 1899
See the decisions with reference to Section 4, Succession Certificate Act, reported in Nanchand v. Yenawa 28 B. 630, Mahomed Yusuf v. Abdur Rahim Bepari 26 C. 839 and Fatehchand v. Muhammad Bakhsh 16 A. 259. For the purpose, however, of Section 273, on which the learned pleader for the appellant mainly relies in support of his contention, supposing that it applies to the facts of this case, a decree for money, which is sought to be attached in execution, has been held in a number of cases to include a decree upon a mortgage, and the Courts have further ruled that the effect of Section 273 is to prohibit the sale of a decree for money which has been attached in execution.
Mallikarjunadu Setti And ... vs Lingamurti Pantulu And Valliappa ... on 10 February, 1902
7. I have assumed so far that Section 273 applies. That section, however, seems to have no application to a case like this, where attachment of the decree was never asked for. The point for decision before the Full Bench in Mallikarjunadu Setti v. Lingamurti Pantulu 25 M. 244, which is relied on by the learned pleader for the appellants in this connection, was whether Sections 310A and 311, Civil Procedure Code, applied to sales held in execution of a mortgage decree and in coming to a conclusion on that question the majority of the learned Judges held that an order under Section 89, Transfer of Property Act, was substantially an order in execution of a decree It may also well be that many of the provisions of the Civil Procedure Code as stated in that case apply to mortgage decrees. But in order to determine whether a particular section of that Code is applicable or not in a given case, one must have regard to its language as well as to its scope. Section 273 of the Civil Procedure Code as well as Rule 184 of the Civil Rules of Practice, as I have said, deal with cases where a decree is attached in execution but such a process would be wholly unnecessary in enforcing an ordinary mortgage decree ordering sale of the property. If Section 273 applied, the result would be that if the holder of a mortgage decree-which, in this connection we shall regard as a money decree-pledges it as security for his debts authorising the creditor to obtain an order for its sale in default of payment, the Court cannot enforce such a contract, or, in other words, a mortgage decree cannot be pledged as security. We have not been referred to any authority in support of such a proposition and I am not prepared to accord to Section 273, Civil Procedure Code, which merely enacts a rule of procedure, a scope which would indirectly affect an important question relating to the right of the decree-holder to deal with his rights under the decree. OIL the other hand Section 232, Civil Procedure Code, the language of which is quite general, seems to me to recognise the validity of a pledge of a decree as security no less than the validity of its sale. And there is nothing in reason why if a decree-holder can sell his decree, he cannot make it security for his debts. It then follows that if there is nothing in the law to prevent a decree-holder from pledging his decree as a collateral security, it must be within the competence of the Court, which is asked to enforce such a contract, to order the sale of the property pledged. But it is said that the Transfer of Property Act makes no provision for such a transaction; but that statute does not purport to deal exhaustively with the law relating to different forms of securities, for instance, it does not deal with pledges of tangible movable property, Government Promissory notes, policies of insurance and the like. In oases not specifically dealt with by that Act the Court acts upon its general power of enforcing contracts.
Vaidhinathasamy Iyer vs Somasundram Pillai on 13 March, 1905
5. Now whether a mortgage decree which directs the defendant to pay a certain sum of money as well as directs the sale of the mortgaged property, as is the character of the decrees bought by the Chetties, is to be regarded as a money decree depends on the connection in which the question arises. So far as it gives the first relief there can be no doubt that it is a money decree pure and simple and so far as the other relief is concerned it is directed against certain specific property. But the right to the last relief as well is given as a mere means of realising the money to which the plaintiff is found to be entitled. Whenever, therefore, we find that the Legislature, in speaking of money decrees in a particular context, has in contemplation the ultimate end, which it is intended to reach by such decrees, it would be right to hold that the description applies to ordinary mortgage decrees. See Vaidhinadasamy Ayyar v. Somasundram Pillai 28 M. 473. The Courts in considering the meaning of the word money decree,' as used in different contexts or even in the same context, have held different views and it is not necessary for the decision of the present case to discuss all these rulings.
The Transfer Of Property Act, 1882
Section 4 in The Succession Certificate Act, 1977 [Entire Act]
Section 89 in The Transfer Of Property Act, 1882 [Entire Act]
Gulzari Lal vs Daya Ram And Anr. on 21 October, 1886
Section 273 is a mere rule of procedure and I do not think we ought to give it or Rule 184, which merely embodies the effect of that section, a scope which would interfere with the provisions of Section 266 any further than is necessarily called for by its language. I think that it would he extending the application of Section 273 beyond all reasonable limits if we were to hold that it has the effect of rendering the sale of a decree for money held in execution altogether invalid and without jurisdiction. On the other hand it seems to ho unreasonable that where no objection is raised to such a sale by the holder of the decree or his creditor, who in this case has in fact brought about the sale, it should be open to the judgment-debtor under that decree to raise any objection. This view is warranted by the principle of the decisions reported in Gulzari Lal v. Daya Ram 9 A. 46, Balkrishna v. Masuma Bibi 5 A. 142, at p. 157 (P.C.)
Jotindro Nath Chowdhry And Anr. vs Dwarka Nath Dey on 21 December, 1891
See Sultan Kuar v. Gulzari Lal 2 A. 290, Tiruvangada v. Vythilinga 6 M. 418; Jotindro Nath Chowdhry v. Dwarka Nath Dey 20 C. 111: Gopal Nanashet v. Joharimal; Dada, Balshet v. Joharimal 16 B. 522. Taking the law on this point to ho thus settled, I. have next to consider what is the scope of the prohibition, does it make the sale held in spite of it a nullity so that it confers on the purchaser no title which he can enforce against the judgment-debtor? That would be the result if the prohibition can be said to be based on grounds of public policy or as striking at the jurisdiction of the executing Court. But it would be otherwise if the provision of Section 273 as suggested by Mr. P.R. Sundara Aiyar, who appeared for the Chetties, is intended only for the protection of the holder of the decree sought to he sold or of the person seeking execution against it. It is easy to conceive that it might be in the interest of either of them to insist that the decree should be executed and the money realised in execution he utilised in discharging the debt due to the latter. On the other hand, the judgment-debtor under the decree, which is proceeded against, has in any event to satisfy the judgment outstanding against him and it can make no difference to him who puts it in force so long as he has not to pay twice over and whatever equities he has against his judgment-creditor are safe-guarded.
Sultan Kuar vs Gulzari Lal on 17 April, 1879
See Sultan Kuar v. Gulzari Lal 2 A. 290, Tiruvangada v. Vythilinga 6 M. 418; Jotindro Nath Chowdhry v. Dwarka Nath Dey 20 C. 111: Gopal Nanashet v. Joharimal; Dada, Balshet v. Joharimal 16 B. 522. Taking the law on this point to ho thus settled, I. have next to consider what is the scope of the prohibition, does it make the sale held in spite of it a nullity so that it confers on the purchaser no title which he can enforce against the judgment-debtor? That would be the result if the prohibition can be said to be based on grounds of public policy or as striking at the jurisdiction of the executing Court. But it would be otherwise if the provision of Section 273 as suggested by Mr. P.R. Sundara Aiyar, who appeared for the Chetties, is intended only for the protection of the holder of the decree sought to he sold or of the person seeking execution against it. It is easy to conceive that it might be in the interest of either of them to insist that the decree should be executed and the money realised in execution he utilised in discharging the debt due to the latter. On the other hand, the judgment-debtor under the decree, which is proceeded against, has in any event to satisfy the judgment outstanding against him and it can make no difference to him who puts it in force so long as he has not to pay twice over and whatever equities he has against his judgment-creditor are safe-guarded.