Madhusudan Chackerbutty vs Kailash Chunder Brahmachari, and on his death his heiress and legal representative Santomoni Debya

Banerjee, J.—This appeal arises out of an application for execution of decree and an application for a decree under sec. 90 of the Transfer of Property Act. The facts of the case, as stated in the judgment of the first Court, are shortly these :-- The decree-holder in this case obtained a mortgage decree on the 14th May 1883. In 1885 the mortgaged property was sold in execution of this decree, but the sale proceeds proved insufficient to satisfy the decree, and the decree-holder took several executions subsequently, but all of them were struck off and no money realised. This present application was made on the 1st May 1895, that is, on the last day of the 12th year from the passing of the decree, and in this application the decree-holder prayed to proceed against the other properties of the judgment-debtor.

These being the facts of the case, the first Court held that the application for a decree under sec. 90 of the Transfer of Property Act, which was necessary to enable the mortgagee to recover the balance of the mortgage-debt by the Sale of properly oilier than the mortgaged property, was barred by limitation, the application having been made more than twelve years after the date of the decree and the first Court accordingly refused both the application for a decree under sec. 90, and the application for execution.

On appeal by the decree-holder, the lower Appellate Court has reversed that order, holding, in the first place, that the application for a decree under sec. 90 was not barred by limitation, as it was not an application for execution but was an application in the suit, and in the second place that there was no necessity for an application for a decree under sec. 90, the decree already made in the suit being sufficient to entitle the Plaintiff to recover the money which had been left unrealised by the sale of the mortgaged property, by the sale (sic) property of the judgment (sic)

Against this decision of the lower Appellate Court, the judgment-debtor has appealed; and it is contended on his behalf, in the first place, that the decree does not authorize the sale of any property other than the mortgaged property, and that a decree under sec. 90 was necessary, and in the second place, that the application for a decree under sec. 90 of the Transfer of Property Act was barred by art. 178 of the Second Schedule of the Limitation Act, such application having been made more than three years after the dale when the right to make the application first accrued, that is, from the date when it was found that the sale of the mortgaged property was not sufficient to satisfy the mortgaged debt.

With reference to the first contention of the learned vakil for the Appellant, we may observe that the decree made in the case leaves it somewhat doubtful as to whether it authorizes the sale of any property other than the mortgaged property.

It is admitted, however, that in the plaint filed, there was a prayer for the sale of any properly of the judgment-debtor other than the mortgaged property, if the sale of the mortgaged property be found insufficient to satisfy the decree. But though the decree may leave the matter somewhat in doubt, we are of opinion that the subsequent proceedings in execution taken by the decree holder after the sale of the mortgaged property in 1885 in which the decree-holder prayed for the sale of the property of the judgment-debtor other than the mortgaged property (sic) which were struck off after notice to (sic) debtor, but without any objection from him on the ground that the execution petitions were irregular by reason of no decree under sec. 90 of the Transfer of Property Act having been obtained, placed the case on a different footing from that upon which it would have stood, had this been the first application for execution against any property of the judgment-debtor other than the mortgaged property. The effect of this proceeding being struck off after notice to, but without objection from, the judgment-debtor, is in our opinion to estop the judgment-debtor from raising the objection that he now raises. His objection is purely of a technical character. The Court which allowed the applications for execution in which the decree-holder sought to obtain satisfaction by the sale of other property of the judgment-debtor, was the Court which was competent to pass the decree that sec. 90 contemplates; and under the circumstances of this case, we may hold as against the judgment-debtor that the order of that Court allowing execution to proceed against other properties of the judgment-debtor, should be taken to have the effect of a decree made under sec. 90.

The view we take is amply supported by the decision of the Privy Council in Sadasiva Pillai v. Ramalinga Pillai 24 W.R. 193 P.C. In that case their Lordships observe: "The Court here had a general jurisdiction over the subject-matter, though the exercise of that jurisdiction by the particular proceeding may have been irregular. " And a little further on they add :--" Their Lordships could have felt great regret in coming to the conconclusion. That proceedings began in 1864, and for several years carried on without objection should in 1875 be pronounced infructuous on the ground of irregularity, and the party relegated to a fresh suit in order to assert an indisputable right would be a result discreditable to the administration of justice. In such a suit the Plaintiff would probably find himself, either successfully or unsuccessfully, opposed by a plea of limitation. If such a plea were successful, great injustice would be done to the Plaintiff; if it were unsuccessful, the Respondent would probably find himself in a worse position than that in which he will be placed by the allowance of this appeal, since in such a suit the Plaintiff might recover interest." These are observations that apply, mutatis mutandis, with great force to this case; and following the decision, of their Lordships, we think that this appeal ought to be dismissed with costs. '' In this view it becomes unnecessary to express any opinion upon the other questions raised in the case. We assess the hearing fee at two gold mohurs.