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Judgment
This is an appeal by the decree-holder in O.S. No. 37 of 1896 (Pauper Appeal No. 5 of 1900 on the file of the High Court) against the order
of the District Judge of Vizagapatam, dated 30th August 1901, declaring in Court u/s 88 of the Transfer of Property Act the amount due to the
decree-holder for principal and interest on the mortgage up to 7th August 1901, on taking an account as directed by the decree of this Court,
dated 7th February 1901, in the above appeal. The respondent''s pleader raises the preliminary objection that no appeal lies to this Court against
the said order, and he admits that, if this objection were well-founded, the account itself should have been taken in. this Court and the order fixing
the amount should have been declared in Court by this Court on the 30th of August 1901. In our opinion the objection is not well-founded and the
order appealed against is really one falling u/s 244(c) of the Civil Procedure Code, being a question arising between the parties to the suit in which
the decree was passed on appeal by this Court and relating to the execution of that decree. Following the decision of this Court in the recent Full
Bench cases See Mallikarjunadu Shetti v. Lingamurti Pantulu & c. ILR 25 M. 244 we hold that a decree for sale passed u/s 88 of the Transfer of
Property Act is the final decree in the suit, and that all proceedings taken subsequent to that decree for the purpose of enforcing and working out
such decree are proceedings in execution of that decree. A decree for sale passed under that section may declare the amount due on the mortgage
at the date of such decree, or direct, as was done in this case, that an account be taken of what will be due to the plaintiff for principal and interest
on the mortgage on a future day which is to be fixed by the decree itself. In this case the 7th of August 1901 was the day so fixed by the appellate
decree of this Court, dated 7th February 1901, and the decree further provided that the amount that may be declared due on the 30th of August
1901 should be paid on or before the 31st of December 1901. In our opinion an application which the decree-holder may make for taking the
account and declaring the amount which may be found due on the taking of such account is an application to enforce that portion of the decree
within the meaning of Section 230 of the Code of Civil Procedure, and that being so, the decree-holder is entitled to apply u/s 563 to the Court
which passed the decree against which the appeal was preferred to the High Court. The Court which is to declare the amount due by virtue of. the
appellate decree is, therefore, the Court which passed the original decree. In this view the order in question falls u/s 244(c) and is analogous to
orders under clauses a and b of Section 244 fixing the amount of mesne profits or interest payable under a decree.
The preliminary objection therefore fails. The appellant''s counsel takes exception to two items in the account. The first relates to the amount of
mesne profits, Rs. 12,666-10-8. In regard to this no evidence has been offered by the appellant to show that it should not be fixed on the basis of
the lease, as was done by the Judge.
As regards the second item, Rs. 6,161-11-0, no doubt in the plaint it was credited towards the mortgage debt sued for, but it was so credited
towards the amount due under three mortgage bonds, whereas in appeal the appellant was made liable only under two mortgage bonds. In the
absence of any evidence to the contrary, the District Judge ought to have credited only a proportionate share of this item towards the sum due by
the appellant. The Vakils on both sides agree that on this account the figure Rs. 6,161-11-0 should be Rs. 4,407.
We allow the appeal to this extent and modify the sum declared in para 1 of the District Judge''s order by substituting Rs. 22,619-6-10 for Rs.
20.864-11-10.
Appellant and respondent will pay and receive proportionate costs calculated on the above two items in this Court.