Batak Nath vs Pitambar Das and Others

Straight and Tyrrell, JJ.—This is an execution first appeal and it relates to execution proceedings in regard to a decree of the 17th December 1886. That decree was couched in the following terms:-- "It is decreed and ordered that the plaintiff''s claim for Rs. 6,251-8-0, with proportionate costs and interest due for the period of pendency at the rate of 8 annas per cent on the principal amount, from this date on the whole, be decreed by enforcement of lien and sale of 5 biswas of Gadanpur; that if the property hypothecated be not sufficient, then the persons and the other property of Pitambar Das and Dhanpat Rai and the property of Chandan Lal will be liable; that the rest of the claim be dismissed." It is to be observed that this decree was partly a decree for sale of mortgaged property by enforcement of a mortgage security, and it also declared that, in the event of the mortgaged property being insufficient to pay the mortgage-debt when sold, the balance should be recoverable from the other property and person of the judgment-debtor. That decree is very similar in terms to one that was drawn up by my brother Mahmood and myself in the case reported in the Weekly Notes for 1890 at page 142.

When a Court passes a decree for sale under s. 88 of the Transfer of Property Act and that is the only relief asked for in the plaint, the decree should be limited to a decree for sale of the hypothecated property; and it is in that case that the subsequent contingency contemplated by s. 90 of the Transfer of Property Act arises. But here in the present case, having regard to the prayer in the plaint, provision was in terms made in the decree itself for what was to be done in the event of the proceeds of the sale of the hypothecated property proving insufficient to pay the mortgage-debt. With a decree so shaped the Court whose business it was to execute it had no option to go behind its terms, and when the condition precedent mentioned in it as to the enforcement of the decree against the person and other property of the judgment-debtor came into effect, it was bound to give effect to that provision and to enforce it against the person and other property. It was with this object and for that purpose that the decree-holder put in his application of the 14th December 1889, which was the subject of the Subordinate-Judge''s order that is made the ground of this appeal. It was objected by the judgment-debtor that the decree-holder could not sell the other property of the judgment-debtor or proceed against his person for the unsatisfied balance of the mortgage-debt without first obtaining a decree under s. 90 of the Transfer of Property Act. I have already pointed out that, looking to the terms of the decree, no such further decree was necessary. But the Subordinate Judge, whilst he appears to have been of opinion that it was necessary for the decree-holder to have a decree under s. 90 of the Transfer of Property Act, refuses to grant him such a decree upon the ground that the grant of such a decree is purely discretionary, and that, having regard to the contention of the judgment-debtors--"That the mortgaged property purchased by the decree-holder is more in value than the whole sum due on the mortgage, and in proof of this fact they offer to pay up within a month the whole sum due, if the decree-holder gave up the property. * * * I would therefore presume that the decree-holder in fact has got all that he was justly entitled to." This seems to me to be not only a wrong method of dealing with this execution proceeding, because the question of s. 90 of the Transfer of Property Act never entered into consideration at all, but a very insufficient reason for disposing of an application for a decree under s. 90. The Subordinate Judge''s order in our opinion cannot stand, and, in decreeing this appeal and reversing the order of the Subordinate Judge, we direct that he take up the application of the 14th September 1889, and dispose of it according to law. The appellant will have his costs of this appeal.