Lalla Tirhini Sahai vs Lalla Hurruk Narain

Rampini and Gordon, JJ.—In this case the respondent obtained a decree upon a mortgage bond for the sum of Rs. 433, for costs, and for the sale of the mortgaged property. He then proceeded to sell the mortgaged property, and the proceeds of that sale were insufficient to satisfy his decree. He next applied to be allowed to execute his decree for the balance of the decretal amount, but he did not make any application u/s 90 of the Transfer of Property Act.

The Lower Courts have held that it was not necessary for the respondent to make such an application; and the judgment-debtor now appeals to this Court, and contends that it was not open to the respondent in this case to execute his decree further against other property of the judgment-debtor, it not being a decree under the provisions of Section 90 of Act IV of 1882.

We think that there is no doubt that the contention of the appellant is correct. The terms of the decree which the respondent has obtained is substantially one under the provisions of Section 88 of the Transfer of Property Act, and it merely gave the respondent a right to sell the mortgaged property and to satisfy his decree from the proceeds, but did not expressly give him any right against other property or the person of the judgment-debtor. We think, in these circumstances, that it was necessary for him to apply u/s 90 for a decree for the balance. We may refer in this connection to the case of Sonatan Shah v. Ali Newaz Khan ILR Cal. 423, in which it was held that such an order should be applied for. We may also refer to Batak Nath v. Pitambar Das ILR All. 360, in which it was held that it was not necessary for the decree-holder in that case to obtain a separate decree u/s 90 of the Transfer of Property Act, because the decree which he had obtained expressly provided that, should the mortgaged property not realize sufficient to satisfy the amount decreed, other property of the judgment-debtor should be liable. Now, in the present case it is quite clear that the decree which the respondent has obtained contains no such express provision. In these circumstances we think that the contention of the appellant in this case must prevail.

We therefore decree this appeal with costs.