Syed Meer Hussain Saib, son and legal representative of Silaman Saib (deceased) vs Subbaramappa Nayanivaru (died) 2. His representative Kumarasami Nayanivaru now called Kumara Timmappa Nayanivaru

Subramania Aiyar, J.—The question in this appeal is whether the decree in favour of the appellant in Original Suit No. 116 of 1888

Subbaramappa Nayanivaru (died) 2. His representative Kumarasami Nayanivaru now called Kumara Timmappa Nayanivaru on the file of the

District Munsif''s Court at Chittoor, is a decree for sale within the meaning of Section 88 of Act IV of 1882 as is contended by the appellant or

merely a decree for money as contended by the Judgment-debtor, the respondent. I am of opinion that the appellant''s contention is well-founded,

notwithstanding that the decree has been drawn up inartistically. In determining a question like this regard must be had to the intention of the parties

as disclosed by the pleadings in the suit in which the decree was passed as well as the intention of the court which passed the decree so far as it

can be gathered from the judgment and the decree. See Bam Prasad Barn v. Baghunandan Bam I. L. R. (1880) A, 239 Debi Charan v. Pirbhu

Din Bam. ILR (1880) A. 338

Now in the present case, Original Suit No. 116 of 1888 was brought by the appellant for the recovery of moneys paid by him for the discharge

of Government Revenue assessed on the respondent''s palayam over which the appellant held a mortgage, the said revenue having been allowed

by the respondent to fall into arrears and the palayam having in consequence been attached by the Collector. For the sum so paid the appellant

acquired, u/s 35 of Act II of 1864, a charge on the palayam. And in suing for the recovery of the amount the appellant in his plaint expressly sought

to enforce the charge thus held by him. In the court of First Instance, however, he did not get the relief he prayed for, but on appeal the District

Court decreed ""chat the plaint (appellant) do re-coverthe amount sued for and from the defendant (respondent) and by means of his estate,"" i.e.,

the palayam referred to in the plaint and described in the schedule attached thereto.... The respondent preferred a second appeal against that part

of the decree which gave relief against the respondent personally, but he did not impeach the other part of it and it consequently became final. It is

''thus quite clear that the decree in question confers on the appellant a right to proceed against the estate on which he had a charge and in the

second appeal referred to above, the respondent himselt appears to have treated the decree as one which conferred such a right, The only

objection that can be taken to the decree is that it is not expressed in the language prescribed by Section 88 of Act IV of 1882, as it ought to have

been. Nevertheless it is in substance undoubtedly a decree for sale as the words ""the plaintiff do recover the amount sued for by means of his

(respondent''s) estate,"" when taken with the plaint could not have been intended to mean anything else. I am therefore unable to agree with the

District Judge in thinking that the plaintiff''s remedy is to sue u/s 67 of Act IV of 1882, and I hold that the appellant''s SuitNo.116 of 1888, was

brought under that section and the decree in question in effect directs a sale of the palayam.