Bai Ganga vs Rajaram Atmaram

Basil Scott, Kt., C.J.—In the year 1897 a decree was obtained upon a mortgage under which the mortgaged property was sold and the sale-proceeds proved insufficient to satisfy the judgment debt, the balance of Rs. 581 remaining payable according to the terms of the decree by the mortgagors. The mortgagee was also the holder of another mortgage executed by the same mortgagors upon other property. One of the mortgagors after the decree had been passed died, and his mother who was the surviving mortgagor, instituted a redemption suit to redeem the other mortgage which had not been the subject of the decree and which for the sake of convenience we will speak of as the mortgage of property B. She obtained a decree for redemption and an order for payment of the mortgage-debt by installments, the mortgagee being entitled to a charge on the property B until his claim was satisfied.

In August 1908 before twelve years had elapsed from the passing of the decree of 18 97, the mortgagee applied for execution against property B in respect of the unpaid balance of Rs. 581 payable under the decree.

The execution was resisted and the application came on for argument before the Subordinate Judge on the 3rd of February 1909. He held that an attachment was permissible even though Section 99 of the Transfer of Property Act applied.

From his decision there was an appeal to the District Judge, Mr. Tyabji, who on the 25th of November held that the application for execution was in contravention of the provisions of Section 99 of the Transfer of Property Act, and accordingly the Darkhast was dismissed. Then in April 1910, for reasons which are not apparent to us, he revoked his decision given five months previously on a point of law and came to the conclusion that, although Section 99 of the Transfer of Property Act still applied to the case notwithstanding the provisions of the Code of Civil Procedure, Order XXXIV, Rule 14, the attachment was nevertheless permissible. He, therefore, reversed his decree dismissing the Darkhast and directed the property against which execution was sought by the decree-holder to be attached. Both sides have appealed to this Court, the respondent by way of cross-objection.

The appellant says the learned Judge was wrong in permitting the attachment. The respondent says that the learned Judge should have gone further and permitted a sale.

We are of opinion that the CPC now in force in so far as it repealed Section 99 of the Transfer of Property Act and substituted in its place Order XXXIV, Rule 14, merely effected a change of procedure in the manner in which mortgaged property has to be realized in execution of money decrees, and therefore the statutory rule in force, for the purpose of the execution of the unsatisfied portion of the decree of 1897, is the rule contained in Order XXXIV of the present Procedure Code. For this reason we think that the respondent is entitled to an order on the Darkhast that the property attached be sold, and we amend the decree of the District Judge by directing that the property be sold.

The appellant must pay the costs throughout.