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438 paragraphs · 10,823 wordsDavies, J.—In Appeal against Appellate Order No. 35 of 1901 and Appeal against Order No. 48 of 1900.--There can be no doubt that
the provisions of the CPC are applicable to cases tried under special Acts, if the trials are in a Court of Civil Judicature and if there are no rules in
the special Acts inconsistent with, or substituted for, the general rules of the Code of Civil Procedure. Now, in the Transfer of Property Act, after
an order for sale in a mortgage suit has been made, no further rules are laid down as to the subsequent steps to be taken for the conduct of the sale
and other incidents attaching to it. These matters must therefore be governed by the CPC as the Transfer of Property Act is silent in regard to
them. The rules for the conduct of sales by a Civil Court are to be found in Chapter XIX (G) of the CPC and there is nothing in that chapter
excluding from its operation sales in pursuance of mortgage decrees under the Transfer of Property Act. Section 311 of the Code in that chapter
provides one mode of rescinding a sale before it has been confirmed, namely, by showing that there was material irregularity in publishing or
conducting the sale by which substantial injury was caused. Section 310-A provides another mode by which a sale may be rescinded, namely, by
allowing the judgment-debtor thirty-days'' grace under certain conditions for paying up the decree amount on account of which the sale was made.
It seems to me that, if either of these provisions applies to sales in execution of any decree including a mortgage decree, the other must also do so.
The fact that Section 310-A was enacted at a later date than Section 311 and after the Transfer of Property Act had come into operation cannot,
in my opinion, make any difference. Section 310-A being incorporated as it is in the Civil Procedure Code, now forms part and parcel of it. When
property is sold in execution of a mortgage decree it is not sold as mortgaged property, but as the absolute property of the quondam mortgagor
treated as a judgment-debtor. It has been restored to his full ownership by operation of law (see Sections 87, 89 and 93 of the Transfer of
Property Act). Therefore, there is no reason to treat it differently from any other Immovable property belonging to the judgment-debtor.
My answer to the references accordingly is that both Sections 310-A and 311 of the CPC apply to sales in pursuance of mortgage decrees.
In Appeal against Order No. 156 of 1900.-- With regard to the question raised in this reference, namely, whether an appeal lies against an
order refusing to make an order absolute upon an application made u/s 89 of the Transfer of Property Act, I think that it lies as from an order
passed in execution and not as from a final decree. I entirely agree with the conclusion arrived at by my learned colleague, Mr. Justice Bhashyam
Ayyangar, especially as it elaborates and confirms the view I took of the matter so far back as 1893 in the case of Bamasami v. Sami ILR 17
Mad. 96 The late Chief Justice, Sir Arthur Collins, and myself there held that a decree passed u/s 92 of the Transfer of Property Act is a final
decree and that orders passed u/s 93 were merely supplementary to the decree made u/s 92, showing whether the terms of the decree have or
have not been fulfilled, in other words, orders for executing the decree in such respects as it has to be executed. For instance, the decree directs if
the mortgagor has paid the money mentioned in the decree to the mortgagee, that the mortgagor shall, if necessary, be put into possession of the
mortgaged property. The further order of the Court directing that the mortgagor be put in possession as he has paid the money, is clearly nothing
but execution of the decree. It cannot be said to be a confirmation of the decree which it is merely carrying out. So, in the same way, when the
mortgagor has failed to pay the amount mentioned in the decree, it is further decreed that the property be sold, and the subsequent order that the
property be sold as the money has not been paid must also be held to be an order in execution and not merely a confirmation of the decree. To
hold otherwise would be to hold that one part of the decree is final and that another part is not. There cannot be two final decrees on the same
matter in any suit. So that, if the decree u/s 92 is a final decree in respect to the delivery of possession of the property to the mortgagor in case he
pays, it is also final in respect to the sale of the property in case he does not pay. No doubt"" the decree is a conditional decree, but the ascertaining
which of its conditions has been fulfilled and the passing of orders consequent thereon cannot but be matters relating to its execution. It has been
the practice of this Court to treat an application in execution for an order for sale in pursuance of a mortgage decree as tantamount to an
application to make an order absolute for sale although these terms are not used. This could never have been permitted if it had been deemed
necessary that before making an application for an order for sale in execution, a prior application for making the decree for sale absolute by an
order had to be applied for and granted. So that the practice of this Court has been in accordance with the principle that a decree for sale is a final
decree and the order for sale, whether it be called absolute or not, is obtainable only in execution of that final decree.
Benson, J.
In Appeal against Appellate Order No. 35 of 1901 and Appeal against Order No. 48 of 1900.--I am of opinion that Sections 310-A and 311
of the CPC do apply to sales of mortgaged property by order of the Court. There can, I think, be no doubt but that such sales may properly be
said to be ''under,'' i.e., conducted under the authority and in accordance with the provisions of Chapter XIX of the Civil Procedure Code. Before
the Transfer of Property Act was passed such sales could only have been conducted in any part of India ''under'' the CPC and even since the
Transfer of Property Act was passed such sales can, in those Provinces to which the Transfer of Property Act has not been extended, be
conducted only under the Civil Procedure Code. In those provinces to which the former Act has been extended, I think it may properly be said
that such sales are ''under'' both Acts, that is to say, they are held under the authority of, and are conducted in accordance with, the provisions of
the CPC generally, and such special provisions, if any, as are to be found in the Transfer of Property Act. Both Acts must be read together and
effect must be given to the provisions of both unless they are found to be inconsistent.
In this view the right given by Section 311, Civil Procedure Code, to apply to the Court to set aside a sale on the ground of material irregularity,
must obviously apply to sales of mortgaged property by order of the Court, for there is nothing in the Transfer of Property Act inconsistent with
that section. I think that Section 310-A also applies to such sales and for the same reason, viz., that there is nothing in it inconsistent with the
Transfer of Property Act.
When the CPC and the Transfer of Property Act were passed in 1882 there was no provision of law corresponding to that now contained in
Section 310-A, whereby the Court could set aside a sale after it had taken place, on the judgment-debtor paying up the decree-debt and
compensating the purchaser for his disappointment. The law was then in this respect just the same in regard to sales of mortgaged property and
sales of other property attached and sold by the Court in execution of a decree. The Court had power, in its discretion, to adjourn the sale, but
once the sale had taken place the judgment-debtor could not get it set aside by any payments to the decree-holder and purchaser. The Transfer of
Property Act in Sections 87 and 93 provided for working out decrees for foreclosure and redemption, respectively, and in both cases gave the
Court power to postpone from time to time the day named in the decree for payment, This power of postponement before making an order
absolute for foreclosure was necessary in order to prevent hardship in certain cases. It was not given by the Civil Procedure Code, so it was
necessary to provide for it in the Transfer of Property Act.
The CPC did, however, provide as already stated for the adjournment, from time to time, of sales of Immovable property generally, and as the
CPC applied to sales of mortgaged property as well as to sales of other property, there was no need to make any special provision in Section 88
or Section 89 of the Transfer of Property Act for the postponement of sales of mortgaged property.
Until an order absolute for foreclosure had been made the Court could, under the Transfer of Property Act, postpone the date fixed in the
decree for payment of the mortgage money, and even after an order absolute for sale had been made, the Court Could, under the Civil Procedure
Code, adjourn the sale. But once an order absolute for foreclosure or for sale had been made the mortgagor had no further right to redeem the
property. Section 89 provided that when an order absolute for sale was passed the right to redeem was thereupon extinguished and the security
was also extinguished, but (as pointed out by Mr. Maopherson, ''Law of Mortgage in British India,'' 7th edition, page 697) until the sale was
effected the mortgagor had the right as a debtor to discharge the decree-debt and thus obviate the necessity for a sale. In that case the property,
being freed from the encumbrance, reverted to the mortgagor in full ownership. This was how the law stood in 1882 in places where the Transfer
of Property Act was in force, and it was in this state of the law that Act V of 1894 was passed, whereby Section 310-A was introduced into the
Civil Procedure Code. The policy of this section is well known to those who have followed the course of Indian legislation in recent years and is
succinctly set forth in ''the statements of objects and reasons'' with which the Bill was introduced into the Legislative Council. That policy, briefly
stated, was to obviate the hardships arising from the fact that Immovable property sold by auction in execution of a decree seldom realized an
adequate or even a reasonable price, and it was therefore desirable to give persons whose property was so sold a right to recover it on paying to
the decree-holder the sum for which it was brought to sale, and also to the purchaser fair compensation for the cancellation of his purchase. The
section declares, without reservation, that ''any person whose Immovable property has been sold under this chapter may at any time within thirty
days from the date of the sale'' have it set aside on payment of the judgment-debt, and of compensation to the purchaser. There is no reservation
or exception in the case of persons whose Immovable property has been sold under a decree in a suit on a mortgage. The terms of the section
include such sales, and effect should be given to its terms unless they are inconsistent with any special provision of law. I cannot see how they are
in any way inconsistent with the provisions of the Transfer of Property Act relating to sales of mortgaged property. The object of such sales is to
obtain for the mortgagee the mortgage money due to him. When the property has been sold the Court has done all that can be done to obtain the
money from the property mortgaged. The mortgagee has no longer any claim on the property and is not concerned with its further disposal.
Everything which the Transfer of Property Act says shall be done in regard to the property has been done, and the Act has no further concern with
it. I do not think it is correct to say that the application of Section 310-A in effect provides for an extension of the time for redemption. It has
nothing to do with the redemption of the mortgage, but provides for the restoration of the property to the original owner on certain terms after his
right to redeem the mortgage has been extinguished (Section 89, Transfer of Property Act) and the property has been sold in execution of the
decree. It is just the same in the case of property attached and sold in execution of decrees other than mortgage decrees. When the property has
been sold the judgment-creditor has no longer any concern with the property. In both cases the only person then interested is the purchaser. It is
not until this stage is reached that Section 310-A comes into operation. In pursuance of the policy which dictated its enactment it says that the
owner of the property may even at this stage get back the property, provided he at once, that is, within thirty days, pays down not only a sum
sufficient to pay what the decree-bolder has realized by the sale, but the amount specified in the proclamation of sale as that for the recovery of
which the sale was ordered, (which may be much more than the amount actually realized) and also a sum equal to 5 per cent, of the purchase
money to be paid to the purchaser as compensation for his disappointment and any loss that he may have incurred by having his purchase thus set
aside. It will be seen that the decree-holder cannot suffer, but may benefit, by action taken u/s 310-A. The purchaser is the only person who may
suffer, but the Legislature has deliberately imposed this risk on him, and he receives compensation. I think it is impossible to draw any distinction,
either in equity or under the terms of the law, between the position of the several persons concerned when the property has been sold under a
decree in a mortgage suit or under a decree in any other suit, and, in my judgment, Section 310-A applies equally to both classes of debtors. This
was the view taken by a Bench of this Court of which I was a member in Tirumal Rao v. Syed Dastaghiri Miyah ILR 22 Mad. 286 and also by the
High Courts of Allahabad Raja Ram Singhji v. Chunni Lal ILR 19 All. 205 and Bombay Krishnaji v. Mahadev Vinayak ILR 25 Bom. 104. For
the reasons stated I am respectfully unable to accept the contrary view adopted by the High Court of Calcutta Kedar Nath Raut v. Kali Churn
Ram ILR 25 Calc. 703.
In Appeal against Order No. 156 of 1900.--As regards the question raised in Appeal against Order No. 156 of 1900, I have had an
opportunity of perusing the judgment of my learned colleague, Sir Bhashyam Ayyangar, J., and I entirely concur in his conclusions, that an
application u/s 89, Transfer of Property Act, must be treated as, in effect, an application for execution of the decree passed u/s 88, that it is
governed by Article 179 of the Limitation Act and that an order thereon is appealable as an order passed u/s 244, Civil Procedure Code. I have
nothing to add to his exhaustive argument.
Bhashyam Ayyangar, J.
The questions referred to a Full Bench in these three cases are respectively the following:
(i) Whether Section 310-A, Civil Procedure Code, is applicable to a sale of mortgaged property which has taken place in execution of a mortgage
decree;
(ii) Whether Section 311, Civil Procedure Code, is applicable to such a sale;
(iii) Does an appeal lie against an order refusing to make an order absolute for sale upon application made u/s 89 of the Transfer of Property Act.
I propose to consider these three references in one judgment as they all depend in a great measure upon one and the same question, viz., the
relation between chapter XIX of the CPC on the ''execution of decrees'' and chapter IV of the Transfer of Property Act on ''mortgages of
Immovable property.''
Dealing with the first two questions together, I am clearly of opinion that the provisions of Sections 310-A and 311 of the CPC are applicable
to sales of mortgaged property in execution of mortgage decrees even in provinces in which the Transfer of Property Act is in force.
The Transfer of Property Act was passed on the 17th of February 1882 and came into force in this Presidency on the 1st July; the CPC was
passed on 17th March and came into force on the 1st of June 1882, Section 310-A being introduced into it by an Amendment Act (V) passed in
1894. Though the Transfer of Property Act does not relate to transfer of property by operation of law or by or in execution of decrees or orders,
yet an exception is made in regard to the operation of Section 57 and chapter IV of the Act [Section 2 (d) of the Transfer of Property Act]. It is
equally clear that chapter XIX of the CPC relates not only to the execution of simple decrees for payment of money, but also to mortgage decrees
directing sale of Immovable property; and in provinces to which the Transfer of Property Act has not been extended, the enforcement and
execution of mortgage decrees is regulated solely by chapter XIX, Civil Procedure Code; Sections 223 (c), 295 (c). 320 and 322, Civil
Procedure Code, directly refer to decrees directing the sale of Immovable property for the discharge of mortgage debts; and sales in execution of
mortgage decrees must be conducted only under the provisions of chapter XIX, Civil Procedure Code, and the rules which it is obligatory on the
High Court to make u/s 287 of the Civil Procedure Code.
Sections 87, 89 and 93 of the Transfer of Property Act prescribe certain rules for the enforcement of decrees in foreclosure suits, in suits for
sale and in suits for redemption, such rules being, in my opinion, supplemental to those prescribed by chapter XIX of the Civil Procedure Code.
Speaking generally, I may mention that with the exception of Sections 278 to 284 (relating to claims preferred to or objection made to the
attachment of property in execution of a decree) and possibly a few more sections, all the other sections are applicable of their own force to the
execution of decrees on mortgages. Section 649, Civil Procedure Code, places this matter beyond all doubt. That section extends the rules
contained in chapter XIX to the execution of any judicial process for the sale of property which may be ordered by a Civil Court in any civil
proceeding. Such provision is made in view to extend the provisions of chapter XIX which relates only to suits, to sales which may have to be
made by a Civil Court in some proceedings other than proceedings in a suit, It is thus obvious that all sales which may have to take place in
execution of decrees passed in suits are governed and regulated by chapter XIX, Civil Procedure Code.
Section 104 of the Transfer of Property Act empowers the High Court--without making it obligatory on the High Court to do so, as in the case
of rules contemplated by Section 287, Civil Procedure Code--to make rules, consistent with the Act, for carrying out the provisions ''of chapter IV
of the Act. No rules have yet been framed in this Presidency under this section--so far, at any rate, as Courts subject to its appellate jurisdiction
are concerned. But, in my opinion, the rules contemplated by Section 104 cannot affect the question now under consideration, and indeed, so far
as the Courts subject to the superintendence of the High Court are concerned, no rule could be framed under that section inconsistent with
Sections 310-A and 311, Civil Procedure Code, or any other enactment for the time being in force. Section 104 of the Transfer of Property Act
must be read subject to Section 15 of the Charter Act which provides that the High Court shall have power to make and issue general rules for
regulating the practice and proceedings of all Courts which may be subject to its appellate jurisdiction, provided that the rules so made are not
inconsistent with the provisions of any law in force, and shall, before they are issued, have received the sanction of the Governor-General in
Council or of the Governor in Council of Madras or Bombay as the case may be. If Section 104 of the Transfer of Property Act were construed
as enlarging the powers thus conferred upon the High Court, so as to make it competent for the High Court to substitute its own rules for those
contained in the Civil Procedure Code, or to make rules which are inconsistent with the provisions of the Civil Procedure Code, Section 104 of the
Transfer of Property Act will be ultra vires of the Indian Legislature; for u/s 22 of the Indian Councils Act (24 & 25 Vict., cap. 67) if is beyond the
power of the Governor-General in Council to make any law affecting the provisions of any Act passed in the same session of Parliament, and the
Indian High Courts Act (24 & 25 Vict., cap. 104) was passed in the same session as the Indian Councils Act (24 & 25 Vict., cap. 67). Section 9
of the Charter Act, no doubt, subjects all powers and authority for and in relation to the administration of justice, which may be conferred upon the
High Courts by Her Majesty''s Letters Patent, to the control of the legislative authority of the Governor-General of India in Council. But the power
to make rules for regulating the practice and proceedings of the Subordinate Courts is not conferred upon the High Court by Letters Patent, but by
Section 15 of the Charter Act itself, and such power therefore can in no way be affected by the Indian Legislature, On this point I may refer to the
decision of the Calcutta High Court in Queen v. Meares 14 B.L.R. 106 and in particular to the following extract therefrom (at page 112)--""After
consideration of this question, I think that the meaning of the words, ''any provisions of any Act passed in the present session of Parliament or
hereafter to be passed,'' is provisions in the Act itself. For instance, there is the qualification of the Judges of the High Court. The Governor-
General in Council has not power to make an alteration in that. There is an express provision of the Act upon the subject. So also in Section 15
there is a provision giving to the High Court superintendence over the Courts which are subject to its appellate jurisdiction. That again is a
provision in the Act which cannot be affected or altered by the Governor-General in Council. But I am of opinion that the words ''provisions in the
Act'' do not apply to what is not in the Act itself, but only in the Letters Patent which the Act authorises to be issued, and which can only be said to
be a provision of the Act'' by relation--by what is rather a forced construction, namely, that as the section says that the Courts shall have all the
jurisdiction which shall be given by the Letters Patent, whatever is given by them becomes fixed, and is in the same state as if the words in the
Letters Patent had been in the Act itself. I think that was not the intention of the Legislature and what has occurred subsequently confirms me in
that opinion."" Section 15 of the Charter Act also empowers each of the High Courts to prescribe forms for every proceedings in the Subordinate
Courts for which it shall think necessary that a form be provided; and the proviso that they shall not be inconsistent With the provisions of any law
in force is equally applicable to them. But Section 644, Civil Procedure Code, subjects the forms set forth in the fourth schedule thereto to the
power conferred on the High Court by Section 15 of the Charter Act.
Section 104 of the Transfer of Property Act does not, in my opinion, primarily contemplate the making of rules for the execution of decrees
passed under chapter IV of the Act, such rules being already provided for by chapter XIX of the Civil Procedure Code, supplemented as they are
by Sections 87, 89 and 93 of the Transfer of Property Act, What the section contemplates is the making of rules for ''carrying out the provisions''
in the chapter. Section 85 provides that all persons having an interest in the property comprised in the mortgage must be joined as parties to any
suit relating to such mortgage. But the sections relating to foreclosure, sale and redemption do not provide for successive redemptions and
foreclosures and for the adjudication and enforcement of the rights of puisne mortgagees and of other persons having an interest in the property
comprised in the mortgage who are joined as parties to the suit. No inconsiderable number of mortgages on which suits are brought are really
''anomalous mortgages'' and adequate provision is not made in the chapter for dealing with such suits and for working out the rights and liabilities
flowing therefrom. The rule-making power conferred on the High Court by Section 104 is, in my opinion, principally intended to regulate the
procedure to be adopted for carrying out these and similar provisions contained in the chapter. The wording of Section 104, however, is
sufficiently wide to authorize also the marking of rules for more effectually enforcing decrees that may be passed under the chapter; but such rules
may supplement the provisions of chapter XIX, Civil Procedure Code, provided they are non inconsistent with them, but cannot supersede them.
With all deference I am unable to concur in the Full Bench decision of the Calcutta High Court in Kedar Nath Raut v. Kali Churn Ram ILR 25
Calc. 703 in which it was held that Section 310-A, Civil Procedure Code, was not applicable to a sale of mortgaged property in execution of a
decree ordering sale thereof. In that decision the learned Chief Justice goes so far as even to doubt whether a rule u/s 104 of the Transfer of
Property Act extending Section 310-A, Civil Procedure Code, to such a sale would not be invalid as being inconsistent with the Transfer of
Property Act. The whole reasoning proceeds upon the assumption that Section 104 would not have been introduced into the Act, if the provisions
of the CPC for the execution of decrees were applicable to sales of mortgaged property in execution of decrees passed under the Transfer of
Property Act. The High Court of Calcutta appears to have framed rules simply extending specified sections of chapter XIX, CPC to sales of
mortgaged property. At the time when such rules were framed, Section 310-A had not been enacted. If it had been provided by Section 104 of
the Transfer of Property Act, that it would be competent for a High Court to extend all or any of the sections of chapter XIX of the CPC to sales
of mortgaged property, that might, by implication, amount to a legislative declaration that chapter XIX in itself was not applicable to such sales. But
that is not how Section 104 is framed. What the High Court of Calcutta has done is not to make rules but to extend specified sections of the CPC
to them. The argument that the application of Section 310-A, Civil Procedure Code, to the setting aside of a sale of mortgaged property is really to
extend the time for redemption and thus to violate the provisions of the Transfer of Property Act is far from conclusive. When an order for sale is
passed u/s 89 of the Transfer of Property Act,--and a sale could take place only after such order--the right of redemption and the security are
both extinguished, and the property is sold unincumbered by the mortgage, like any other property of the judgment-debtor which has not been
mortgaged as security for the decree debt. The judgment-debtor, therefore, by being allowed the statutory benefit of Section 310-A is not allowed
to redeem the property from the mortgage, but, as in the case of a sale of any of his other properties not comprised in the mortgage, to rescind the
sale and that only on condition of paying compensation for such rescission to the auction purchaser, viz., 5 per cent. of the purchase money.
The application of Section 310-A to such a sale--ordered under chapter IV of the Transfer of Property Act but conducted and carried out
under chapter XIX, Civil Procedure Code--can no more be regarded as extending the time for redemption of a mortgage than the application of
Section 291, Civil Procedure Code, under which any sale ordered u/s 89 of the Transfer of Property Act may be adjourned from time to time and
in fact stopped, if before the lot is knocked down the mortgage debt and costs are paid into Court. The question as to whether Sections 310-A,
291 or other similar sections in the CPC are, or are not, consistent with the provision? of the Transfer of Property Act will be material only if it is
proposed to make rules u/s 104 of the Transfer of Property Act embodying the provisions of those sections of the CPC on the assumption that
those sections in themselves are, by virtue of Section 104 of the Transfer of Property Act, rendered inapplicable to sales in execution of mortgage
decrees passed under chapter IV of the Transfer of Property Act. But in the view that those sections are in themselves applicable to such sales and
that Section 104 of the Transfer of Property Act does not render them inapplicable, the question as to their being consistent or otherwise with the
provisions of the Transfer of Property Act is immaterial. If in any particular there be a real inconsistency between the provisions of the Transfer of
Property Act--which was passed on the 17th February, and came into force on the 1st July 1882--and of the Civil Procedure Code--which was
passed later on the 17th March, but came into force earlier on the 1st June 1882--it may admit of some doubt as to which should prevail. That, in
passing the Transfer of Property Act, it was the policy of the Legislature that the Act is not to operate as repealing by implication the provisions of
any enactment, is expressly declared in Section 2 (a), and so far as Section 310-A is concerned--which was enacted only in 1894--there can be
no manner of doubt that that must take effect even if it be inconsistent with the provisions of the Transfer of Property Act.
The reasoning on which the above Full Bench decision of the Calcutta High Court is based, if not its authority, is very much shaken by the
decision of a Division Bench of the same Court in Dakshina Mohan Roy v. Srimati Basumati Debi 4 W.N.474
It has been held by this Court as well as by the High Courts of Bombay and Allahabad that Section 310-A is applicable to sales of mortgaged
property in execution of mortgage decrees Tirumal Rao v. Syed Dastaghiri Miyah ILR 22 Mad. 286 Krishnaji v. Mahadev Vinayak ILR 25 Bom.
104 and Raja Ram Singhji v. Chunni Lal ILR 19 All. 205. Several decisions Birj Mohun Thakoor v. Rai Uma Nath Chowdhry ILR 20 Calc. 8.
and Mahomed Meera Ravuthar v. Savvasi Vijaya Raghunadha, Gopalar L.R. 27 IndAp 17 : ILR 23 Mad. 227 have proceeded upon the
assumption that Section 311 is applicable as well to sales of mortgaged property as to sales in execution of simple money decrees. I see no reason
whatever to- depart from these decisions and to adopt the view taken by the Full Bench of the Calcutta High Court.
As regards the reference made in Appeal against Order No. 156-of 1900, I am clearly of opinion that an appeal does lie from an order
refusing to make an order absolute in pursuance of a decree for sale passed u/s 88 of the Transfer of Property Act. A decree passed u/s 88 of. the
Transfer of Property Act, either under paragraph 1 or paragraph 2 thereof, fulfils in every respect the first part of the definition of ''decree'' as given
in the Civil Procedure Code, viz., ''decree means the formal expression of an adjudication upon any right claimed or defence set up in a Civil
Court, when such adjudication, so far as regards the Court expressing it, decides the suit or appeal.'' This corresponds to. what--unless there is
something to show an intention to use the words in a more extended sense--in law is regarded, in its strict and proper meaning, as a ''final
judgment,'' that is, ''a judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or
established, (per Cotton, L.J., in Ex parte Chinery L.R. 12 Q.B.D. 342. In the same case Bowen, L.J., in expressing his concurrence with Cotton,
L.J., observed as follows: ""I think that a garnishee order absolute is not a ''final judgment.'' There is an inherent distinction between orders'' and
''judgments.'' It is true that certain Acts of Parliament have given to ''orders'' the effect of ''judgments,'' but the distinction between them remains.
The words ''final judgment'' having, then, a proper professional meaning, when they are found in a section of an Act of Parliament defining acts of
bankruptcy, they should be as strictly construed as if they occurred in a section which was defining a misdemeanour, because the commission of an
act of bankruptcy entails disabilities on the person who commits it"" vide also Smith v. Davies 31 Ch. D. 595.
The CPC contemplates but one ''decree'' in a suit, in the above sense, and it nowhere contemplates the passing of a ''preliminary decree'' as
distinguished from a ''final decree'' or of a ''decree nisi'' as distinguished from a ''decree absolute'' (vide Sections 213, 215, 215-A, 265 and 396).
Sections 213, 215 and 215-A empower the Court, ''before making its decree'' in the classes of suits therein referred to, to order that accounts be
taken. In the case of a suit for the partition of an estate paying revenue to Government, the Court passes but one decree and that is a decree
directing the partition. It is then transferred to the Collector for making the partition according to the law, if any, regulating such partition (Section
265). No further decree is passed by the Court. In the case of a suit for partition of Immovable property not paying revenue to Government there
is to be also but one decree but, before making that decree, the Court may appoint a commissioner to submit a schema for effecting the partition
(Section 396). There is, in the section, no reference made to a preliminary decree. All that the section enjoins is that the Court ''after ascertaining
the several parties interested in'' the property, of which a partition is sought and their several rights therein, may issue a commission'' &c.
The second part of the definition of ''decree'' in the CPC enlarges the first part of the definition by including therein ''an order rejecting a plaint,
or directing accounts to be taken, or determining any question mentioned or referred to in Section 244, but not specified in Section 588.'' But for
this enlargement of the definition of ''decree'' the right of first and second appeals would, under Sections 540 and 584, Civil Procedure Code, be
restricted only to ''final adjudication'' of a suit corresponding to a final judgment'' in its strict and proper sense as explained in Ex parte Chinery 12
Q.B.D. 342 already quoted. The effect of the enlargement is to extend such right of first and second appeals to ''orders directing accounts to be
taken'' prior to final adjudication and to all orders subsequent to adjudication, which orders are passed u/s 244, Civil Procedure Code, to give
effect to or carry out the adjudication. An order rejecting a plaint is also thus made subject to a first and second appeal.
The scheme of the CPC is clear, namely, that there is to be only one decree in the suit, corresponding to the first part of the definition, and that
all ''orders'' subsequent thereto, relating to the execution of such decree, determining any question mentioned or referred to in Section 244 are also
to be treated as ''decrees'' for purposes of appeal, as also orders rejecting a plaint or directing accounts to be taken in the course of a suit. The
adjudication of the suit in the sense of ''final judgment'' therein is reached when the ''decree'' according to the first part of the definition is passed;
but the suit terminates only when such ''decree'' is fully effectuated and all proceedings in execution thereof are ''proceedings in suits'' (vide
explanation to Section 647, Civil Procedure Code) and until the final judgment (decree) is satisfied the cause is still pending Salt v. Cooper 16
Ch.D. 544 and the action is not dead Collinson v. Jeffery [1896] 1 Ch. 644.
As regards Form No. 129 in the fourth schedule to the Civil Procedure Code, which is headed ''final decree for foreclosure'' and which by
Section 87 of the Transfer of Property Act was amended by substituting ''decree absolute'' for ''final decree'' I may mention that in the body of the
form reference is made to ''the order made in this suit on the day of last and the period of six months has elapsed since the said day of last. It will
thus be seen that the form is not technically accurate; what is referred to as ''order'' in the body of the form is technically and in reality a ''decree''
passed under and referred to as such in Section 86 of the Transfer of Property Act. I may add that, according to the English law and practice, the
heading of the form ought to be ''order absolute for foreclosure'' and not ''final decree for foreclosure.'' I fully concur in the following criticism of
this amendment by Macpherson in his ''Law of Mortgage in India'' [7th edition, page 695, note (4)]--""The amendment of the heading of Form No.
129 of Schedule IV of the CPC made by this paragraph seems hardly correct. This Act nowhere refers to a ''decree absolute,'' though the second
paragraph of this section provides for the passing by the Court of an order that the defendant be debarred absolutely of all right to redeem the
property. If any amendment of the heading of the form appended to the Code was necessary, it should, it is submitted, have substituted the words
''order absolute'' for ''decree final.'' In England also it may be observed, a foreclosure is made ''final,'' i.e., absolute, by an order, not by a decree
(Seton on ''Decrees,'' 4th edition, page 1089)."" Dr. Ghose in his Tagore Law Lectures on the ''Law of Mortgages in India'' (3rd edition at page
893) in noticing this amendment of the heading of Form No. 129, Civil Procedure Code, observes: ""It may be noticed that the amendment in the
last paragraph (of Section 87) is not very felicitous. The term ''decree absolute'' should strictly be order absolute''; as foreclosure is made final by
an ''order'' and not by a ''decree.''
Forms, and much less the headings of forms, cannot control the construction of the Act and an amendment of the heading of a form by an Act
will really carry no greater weight. This amendment is all the more surprising as in the earlier editions of the Bill which was finally passed into the
Transfer of Property Act, the alteration proposed was to substitute ''order absolute for the words ''final decree.'' I may add that in the body of the
form the word ''decree'' should have been substituted for ''order.'' That, in respect of decrees to be passed in mortgage suits under the Transfer of
Property Act, the Legislature did not wish to depart from the scheme of the CPC is made abundantly clear by the circumstance that, though in the
first edition of the Transfer of Property Bill, Section 19 provided for the passing, in a foreclosure suit, of a ''preliminary decree'' corresponding to
the ''decree for foreclosure'' in Section 86 of the Act and thereafter of a ''decree for the foreclosure of the mortgage'' corresponding to the order
absolute for foreclosure'' in Section 87 of the Act, yet in the subsequent editions of the Bill ''decree'' was substituted for ''preliminary decree'' and
''order absolute for foreclosure'' for ''decree for foreclosure.'' And thus Sections 86 and 87 of the Transfer of Property Act, as they now stand, are
in accordance both with the scheme of the CPC and with the English Chancery law and practice. Similarly in regard to suits for redemption,
Section 25 of the first edition of the Bill provided for the passing of a ''preliminary decree'' corresponding to Section 92 of the Act, and, in
accordance with the English Chancery law and practice, ''for the suit standing dismissed and the plaintiff being foreclosed of all right to redeem''
(corresponding to Section 93 of the Act) in default of payment, within the time fixed, of the amount found due. In the subsequent editions of the Bill
the provision for the dismissal of the suit in default of payment within the time fixed was dropped, that for the passing of an order absolutely
debarring the plaintiff of all right to redeem being alone retained. So far as Section 88 is concerned, in which the decree is for sale of the property
mortgaged, whether the same be passed in a suit for sale, or in lieu of foreclosure in a suit for foreclosure, the matter is free from any difficulty, and
whatever doubt there may possibly be as to the nature and scope of an order absolute for foreclosure under Sections 87 and 93, none such exists
in regard to an order absolute for sale u/s 89, which is the matter immediately under reference. Form No. 128 (fourth schedule, Civil Procedure
Code) is the form of a decree for sale as prescribed by Section 88 of the Transfer of Property Act, and there is no form given for an ''order
absolute for sale'' corresponding to the so-called ''decree absolute for foreclosure'' (Form No. 129). The English form corresponding to Form No.
128, Civil Procedure Code, is Form No. 12 (Sale in Default of Payment) in Seton on ''Judgments and Orders'' (5th edition) on page 1587. In
Seton, as in the Civil Procedure Code, there is no distinct form for an ''order absolute'' for sale. In the form in Seton, liberty is reserved to apply at
Chambers, for directions to effect the sale (vide Annual Practice for 1902, volume I , page 764, Order 55, Rule 2, Clause 14).
Under the Transfer of Property Act, an order for sale is obtained u/s 89, in default of payment by the mortgagor of the decree amount within
the time specified in the decree; on the passing of such order, the security as well as the mortgagor''s right to redeem are both extinguished and the
sale is conducted under the provisions of the CPC as in the case of a simple money decree, in execution of which the property ordered to be sold
had been attached, and the ''security'' of the decree-holder as mortgagee of the property is preserved by the decree by giving him against the sale-
proceeds, ''the same right as he had against'' the property sold. Mr. Macpherson, in commenting upon the effect of the mortgagor''s right to
redeem as well as the security being extinguished by the passing of an order absolute for sale, explains it as follows, and I fully concur in the same--
(Macpherson --''Law of Mortgage in British India''--7th edition, pages 697-98): ""As on the passing of an order absolute for sale, the defendant''s
right to redeem and the security are extinguished, it is clear that the defendant cannot redeem the mortgage after the passing of such an order. And
if the effect of this were that the defendant could not pay off the amount due after an order for sale had been passed, this provision would be most
inequitable, for it would amount to this, that a mortgagor who was willing to pay the amount of his debt would be absolutely prohibited from doing
so and that a Court would be compelled to sell a property in order that a mortgagee might receive payment of that which the mortgagor was
before, and at the time of the sale, perfectly ready and willing to pay him. It is submitted, however, that, though the effect of the provision no doubt
is to extinguish the mortgagor''s right to redeem, he still has the same right as any other judgment-debtor has, to pay off the amount of his debt at
any time before actual execution, that is, before the property is sold. In other words, though be may not, after the passing of an order absolute for
sale, pay the money as a mortgagor, he may do so as a judgment-debtor. There seems to be nothing in this view which is inconsistent with the
section, and, as it favours equity it is one which, it is submitted, may well be adopted. Further, as on the passing of an order absolute for sale, the
security is extinguished, the mortgagee''s interest in the property must then also come to an end. The effect of this must, it is submitted, be that the
entire ownership of the property reverts to the mortgagor, for after the mortgagee''s interest in the property is extinguished there is nothing to limit
the full ownership which is vested in the mortgagor. In the event, therefore, of the mortgagor paying off his debt after such an order as above
suggested, no retransfer of the property by the judgment-creditor to the judgment-debtor would appear to be necessary, inasmuch as the full
ownership of the property reverted to the judgment-debtor when the order absolute for sale was made.
The absence of a provision in Section 89 corresponding to the proviso to Sections 87 and 93, empowering the Court to postpone 10 Mad.-
36 from time to time the day fixed in the decree for payment of the mortgage money, is because the mortgagor under the provisions of the CPC is
given liberty to arrest the sale by payment before the lot is knocked down, and there is no need for a reconveyance by the mortgagee, inasmuch
as, on the passing of an order absolute for sale u/s 89, the mortgage security was extinguished and the ownership reverted to the mortgagor by
operation of law. Though the absence of a proviso to Section 89, empowering the Court to postpone the day appointed in the decree for payment
of the amount will not really prejudice the mortgagor --the judgment-debtor--if the mortgagee should obtain an order absolute for sale, yet if the
mortgagee, as he might in some oases, does not choose to do so, the mortgagor will be unable, so far at any rate as the Transfer of Property Act
goes, to obtain reconveyance of the property by exercising his right of redemption on payment after the day appointed. It would, therefore, have
been better if the proviso for postponing such day, which finds a place in Sections 87 and 93, had also been added to Section 89.
If the decree for sale passed u/s 88 of the Transfer of Property Act has only to be executed under the provisions of chapter XIX of Civil
Procedure Code, Section 89 of the Transfer of Property Act, might at first sight seem superfluous. Without saying that Section 89 is absolutely
necessary in the sense that, but for it, decrees passed u/s 88 could not be executed-- for mortgage decrees passed prior to the Transfer of
Property Act were being executed under the provisions of the Civil Procedure'' Code - Section 89 serves two purposes. Under the Civil
Procedure. Code it is only property that had been attached that could be ordered by the Court to be sold (vide Section 284). Hence it was that,
prior to the passing of the Transfer of Property Act, and in this Presidency even for some years after it, mortgage decrees used to be executed by
first attaching the mortgaged property referred to in the decree and then obtaining u/s 284, Civil Procedure Code, an order for sale, the result of
which was that claims to the mortgaged property preferred by strangers used to be. entertained and summarily adjudicated upon under the claim-
sections of the Civil Procedure Code. This defect in the Civil Procedure Code, by reason of which a difficulty might be raised that an order for sale
of the mortgaged property which had not been attached could not be obtained under its provisions, was remedied by Section 89 of the Transfer of
Property Act. Another important purpose served by Section 89 is to extinguish the security and the correlative right of redemption, so that the
decree may be executed as a money decree in respect of the mortgaged property ordered to be sold, and the property be sold as if the
mortgagor--the judgment-debtor--were the owner thereof, unincambered by the mortgage in question, thus obviating the necessity for extention of
the time fixed for payment u/s 88 as in the case of decrees for foreclosure or redemption.
In my view, Section 89 operates as a provision supplemental to chapter XIX of the Civil Procedure Code, so that a mortgage decree passed
u/s 88 of the Transfer of Property Act may be executed on a scientific basis, and the application to the Court for an order absolute for sale is
nothing but an application u/s 235, Civil Procedure Code, to work out in execution proceedings Sri Rajah Papamma Rao Bahadur v. Sri Vira
Pratapa, Korkonada ILR 19 Mad. 249 Maharajah of Bharatpur v. Ram Ranno Dei ILR 23 All. 181 Harendra Lal Roy Chowdhry v. Maharani
Dasi ILR 28 Calc. 557 the decree passed u/s 88 of the Transfer of Property Act. In all these three cases the Judicial Committee of the Privy
Council refer to the enforcement of the conditional directions contained in the decree passed u/s 88 of the Transfer of Property Act as ''execution''
of the same, and in the last of them, the order absolute passed by the original Court u/s 89 is referred to by the Judicial Committee as the granting
of execution of the decree to the full amount. Section 89 is silent as to the contents of the application, whether it should be verified or not, and
notice thereof given or not to the judgment-debtor, because these matters are fully provided for by Sections 235 and 248, Civil Procedure Code.
A reference to the particulars given by Section 235 will show that an application for an order absolute for sale u/s 89 of the Transfer of Property
Act must contain all such particulars. Particular ''j'' after specifying certain reliefs which may be applied for, concludes ''or otherwise as the nature
of the relief sought may require.'' In the case of a mortgage decree as such u/s 88 none of the reliefs specifically mentioned in ''j'' can be applied
for, and the ''other'' relief to be applied for will be an order absolute for sale of the mortgaged property. Whether or not notice of this application is
to be given to the judgment-debtor or his legal representative will depend on the provisions of Section 248, CPC Tarapada Ghose v. Kamini Dassi
6 W.N. 28. The order of the Court u/s 89 should be to sell either the whole of the mortgaged property, or only a sufficient portion thereof
specifying such portion in the order. u/s 286 the sale will have to be conducted by an officer of the Court and made by public auction. As soon as
the order for sale is passed, the duty devolves upon the Court to issue and publish a proclamation of the intended sale u/s 287, Civil Procedure
Code, and the sale will have to be conducted and completed in the manner provided by the subsequent sections, a warrant of sale being issued to
an officer of the Court in the form prescribed by Form No. 145 of the fourth schedule to the Civil Procedure Code.
That an application u/s 89 of the Transfer of Property Act for an order absolute for sale is only an application for ''leave to issue execution'', is
also in conformity with the execution chapter containing the rules framed under the Judicature Act under Order No. 42. Rule 9 runs as follows:
Where a judgment or order is to the effect that any party is entitled to any relief subject to or upon the fulfilment of any condition or contingency,
the party so entitled may, upon the fulfilment of such condition or contingency, and demand made upon the party against whom he is entitled to
relief, apply to the Court or a Judge for leave to issue execution against such party. And the Court or Judge may, if satisfied that the right to relief
has arisen according to the terms of the judgment or order, order that execution issue accordingly, or may direct that any issue or question
necessary for the determination of the rights of the parties be tried in any of the ways in which questions arising in an action may be tried."" (Annual
Practice, 1902, volume I, page 571.) The judgment or decree passed u/s 88 of the Transfer of Property Act, in so far as it orders sale of the
mortgaged property in default of payment within the time fixed in the decree, is a judgment subject to a condition or contingency as defined in the
above rule, and an application to enforce the judgment (vide Section 230, Civil Procedure Code) by ordering the sale of the mortgaged property
on the ground that the condition or contingency has happend is nothing but an application for leave to issue execution against the mortgagor--the
judgment-debtor--as provided in the above rule, and the applicant affords proof that the condition or contingency has happened, entitling him
absolutely to an order for sale, by verifying his petition which is presented under Sections 89 of the Transfer of Property Act, and 235, Civil
Procedure Code.
u/s 223, Civil Procedure Code, a decree passed u/s 88 of the Transfer of Property Act may be sent for execution, under the provisions therein
contained, to some other Court and, in my opinion, it may be so sent either before or after the order for sale is passed u/s 89. In the latter case,
such order should, u/s 224 (c), Civil Procedure Code, accompany a copy of the decree sent for execution; in the former case the Court to which
the decree is sent for execution has, u/s ''228, the same powers in executing such decree as if it had been passed by itself and its orders in
executing such decree are subject to the same rules in respect of appeals, as if the decree had been passed by itself. If the Court, to which a
decree passed u/s 88 of the Transfer of Property Act is sent for execution, is by fiction of law to be deemed the Court which passed the decree
itself, the order for sale u/s 89 can of course be passed by that Court itself and need not be passed by the Court which in fact passed the decree,
either as a Court of First Instance or as an Appellate Court.
That Section 89 of the Transfer of Property Act does not contemplate the passing of a ''decree absolute'' by making absolute the decree which
was passed only conditionally u/s 88, is placed beyond all doubt by the fact that the conditional decree in favour of the defendant--the mortgagor--
against the plaintiff--the mortgagee--is not required to be made absolute by an application to be made by the defendant--the mortgagor--under
Section 89. In every decree passed u/s 88, the defendant on payment, on or before the date fixed in the decree, of the amount found due and
declared, is entitled to a recovery from the plaintiff of all documents relating to the mortgaged property, to a reconveyance of the property and, if
necessary, to be put into possession of it. The defendant on fulfilling the condition of payment is of course entitled to the above reliefs by executing
the decree, and, if so, why is Section 89 of the Transfer of Property Act entirely silent about any order absolute, at the instance of the defendant,
for all or any of these reliefs? The reason is that the sections of the CPC relating to the enforcement of decrees for delivery of chattels or of
Immovable property or for the execution of conveyances are ample in themselves and may be carried out without the aid of a supplemental
provision in Section 89 of the Transfer of Property Act, as in the case of an order for sale of mortgaged property. I have already suggested the
probable reason for this supplemental provision in Section 89 of the Transfer of Property Act in regard to an order for sale of mortgaged property.
Be this as it may, the scope and object of Section 89 is not to convert a ''decree nisi'' passed u/s 88 into a ''decree absolute,'' or a ''preliminary
decree'' into a ''final decree.'' If that were the object, it is inconceivable that it would be carried out only so far as the decree nisi or preliminary
decree is in favour of the plaintiff and not in so far as it is in favour of the defendant and every decree u/s 88 is necessarily of this dual nature. The
decree passed u/s 88 is the only and the final decree in the suit and Section 89 is only a supplemental provision for the effectual execution on a
scientific basis, of such decree, in so far as it is in favour of the plaintiff, no such supplemental provision being considered necessary for the
execution of the decree in so far as it is in favour of the defendant.
That the framer of the Transfer of Property Act steadily and distinctly kept in view the difference between a ''decree'' and an ''order,'' though
such order may have the force of a decree, i.e., the difference between ''decree'' according to the first part of its definition in the CPC and
''decree'' according to the second part of the definition, is significantly brought out by Section 90 of the Transfer of Property Act immediately
following Section 89. That section provides for the Court passing a decree (not an ''order'') against the judgment-debtor, for the recovery of the
balance of the mortgage debt remaining due after payment to the mortgagee of the net proceeds of the sale of the mortgaged property. Such
decree will have to be executed under the provisions of the CPC as a simple decree for money, and the object of the section is to obviate the
necessity of the mortgagee having to bring a fresh suit on payment of the institution fees--and that, in most cases, parobably in a Court different
from that which passed the mortgage decree or is executing it --to recover the balance of the debt from the mortgagor, on his covenant to pay. If,
in the original suit itself, the mortgagee bad included a personal claim against the mortgagor for payment of the mortgage debt and obtained a
decree for payment of the debt ''personally'' Dymond v. Croft 3 Ch. D. 512 Farrer v. Lacy Hartland & Co. L.R. 25 Ch.D. 636 per North, J.;
Bissett v. Jones 32 Ch.D. 635 Fisher on ''Mortgages,'' 5th edition, paragraphs 806 and 990 and also a decree u/s 88 of the Transfer of Property
Act for sale of the mortgaged property, there would be no necessity for his applying u/s 90 for a fresh decree after the proceeds of the sale of the
mortgaged property have proved insufficient to satisfy the debt. But there may be cases in which, with reference to the provisions of Sections 16
and 17, Civil Procedure Code, the mortgagee would be unable to include both claims in one and the same suit, by reason of the cause of action
not having arisen or the defendant not residing within the territorial jurisdiction of the Court having jurisdiction over the mortgaged property. In such
a case, under the ordinary law, he will have to bring a separate suit in the Court within whose jurisdiction the cause of action on the covenant to
pay has arisen or the mortgagor is residing, for enforcing his claim against the mortgagor personally, and that only if, u/s 43, Civil Procedure Code,
ha obtained the leave of the Court in which the first suit was instituted, to reserve his personal remedy against the mortgagor. Section 90 of the
Transfer of Property Act substitutes an application for a separate suit and thus enables the mortgagee to steer clear of the processual difficulties
arising under Sections 17 and 43, Civil Procedure Code, and obtain, on application made to the Court executing the mortgage decree, a personal
decree for payment of the balance due. Such application should, however, be regarded as an application for execution of the mortgage decree and
therefore governed by the law of limitation applicable to the execution of the mortgage decree. But the application would be infruotuous u/s 90 of
the Transfer of Property Act unless the mortgagee''s personal remedy against the mortgagor is also not barred by the general law of limitation. The
decree u/s 90 being virtually a decree in a suit in the form of an application--which application is made in pursuance of a prayer in the plaint [vide
Form No. 109, paragraph 3 (c), fourth schedule to the Civil Procedure Code] --its execution will be governed by Article 179 of the Indian
Limitation Act and the mortgagee will have to make a separate application u/s 235, Civil Procedure Code, for execution of this fresh or
supplemental decree.
With all deference, I am compelled to dissent from the view taken by the Calcutta High Court in more cases than one Ajudhia Pershad v.
Baldeo Singh ILR 21 Calc. 818 and Tara Prosad Roy v. Bhobodeb Roy ILR 22 Calc. 931 that an application for an order absolute for sale u/s
89 of the Transfer of Property Act is not an application for the execution of the decree passed u/s 88, that there is no period of limitation
prescribed for such application, that the decree passed u/s 88 is only a preliminary decree or a decree nisi, and that the order passed u/s 89 is a
final decree or decree absolute. I entirely agree with the decisions of the Bombay and Allahabad High Courts that an application u/s 89 is an
application for execution of the decree passed u/s 88, that it is governed by Article 179 of the Limitation Act and that an order thereon is
appealable as an order passed u/s 244 (c), CPC Oudh Behari Lal v. Nageshar Lal ILR 13 All. 278 Chunni Lal v. Harnam Das ILR 20 All. 302
Bhagawan v. Ganu ILR 23 Bom. 644. In Bhagawan v. Ganu ILR 23 Bom. 644 Parsons, J (Acting Chief Justice) forcibly observes as follows--
and I fully adopt his observations. Referring to an application made u/s 89 of the Transfer of Property Act he observed: ""If the Subordinate Judge
had avoided technicalities and treated it as what it really is, namely, an application to the Court for an order for the sale of mortgaged property, all
his difficulties would have disappeared. There is no particular magic in the word ''absolute'' and it is