P L D 1967 Dacca 241 (PLP)

MURSHED, C. J:‑This appeal raises a very simple question. Appellant had instituted a suit against a set of judgment‑debtors for realisation of money claimed by the plaintiff. A decree was passed in the suit and in execution thereof plaintiff purchased a property belonging to the judgment‑debtor, obtaining possession of the same, through the instrumentality of Court. While the aforesaid decree was pending execution another suit was filed by the respondents against, tile same set of judgment -debtors for money due to the respondents who had asked for a decree for the amount claimed by them and also for declaration of a charge under section 55 (4) (b) of the Transfer of Property Act in respect of the aforesaid amount of money. Respondents obtained a decree as well as a declaration of the charge against the self‑same property. In the latter suit the appellant was also impleaded as a formal defendant. In execution of the latter decree, respondents sought to proceed against the property purchased by the appellant in execution of the former decree, which he had obtained. In the latter execution proceedings appellant made an application under section 47 of the Code of Civil Procedure for release of the aforesaid property, which was attached in the execution proceedings. The learned Subordinate Judge, who heard the application, rejected the same and ordered that the execution case do proceed. This appeal is directed against the judgment and decree passed by the learned Subordinate Judge, as stated above. At the hearing of the appeal, Mr. Abdul Wadud Choudhury, learned Advocate who has appeared for the appellant before us, has urged that the decree obtained by the respondents is what is called a "money decree". It was also declared in the said decree that a charge was created on the property in question by virtue of section 55 (4) (b) of the Transfer of Property Act. It is on the basis of the charge which was so created that respondents sought to proceed against the same property without obtaining a decree for enforcement of the charge. It is contended that respondents cannot, in execution of a money decree, proceed against a decree for enforcement of the charge itself, when there is no decree for its enforcement. The case of the respondent proceeds on the footing that the charge was enforceable under the decree itself which merely created the charge. But the decree‑holder was called upon to get a specific decree for enforcement of the charge itself. The creation of the charge does not make it automatically enforceable. A specific decree or order has to be obtained for enforcement of the charge. A mere declaration of the charge does not, of itself, operate as a decree for its enforcement. This seems to be the correct legal position. We may, however, refer to the case of Sudhamoyee Singha and others v. Jessore Loan Company, Ltd. and others (49 C W N 68) which is the decision of a Division of the Calcutta High Court and which support the view which we have taken of the matter. At pages 70 and 71 of the report Mr. Justice Mukherjea, in delivering the opinion of the Court, has said:‑ "No decree, either preliminary or final, was passed for sale of any of the charged properties and the decree was both in form and substance one for recovery of money together with a declaration of charge in respect of the decretal dues upon the properties that were specified in the plaint. The proceedings in execution shows that the decree was in fact executed as a money decree. The execution case was headed as a money execution case and an order of attachment was issued and the properties were attached before they were put up to sale. We cannot agree with Mr. Bose that the decree should be taken to be a charge decree, although it was no drawn up in that form. It may be that in cases where the Court, instead of passing a preliminary decree for sale pronounces a final decree all at once, the decree made, though irregular, is not a nullity altogether. But in the case before us no decree for sale, either preliminary of final, was at all passed and there is nothing in the judgment to indicate that the intention of the Court was to pass a charge decree. It is perfectly clear that the Court did only grant the first two prayers made by the plaintiff in his plaint and refused the third prayer altogether. The decree was therefore a money decree together with a declaration of charge in respect of decretal amount upon the plaint properties." For reasons stated above, the appeal is allowed and the impugned order passed by the learned subordinate Judge, being Order No. XXV dated 31‑5‑62, is hereby set aside and the objection by the appellant under section 47 of the Code of Civil Procedure is upheld. We make no order as to costs of this appeal. MAKSIJMUL HAKIM, J.‑I agree. K. B. A. Appeal accepted.