Rama Dattu vs Sakharam Lingu and Others

Section 90 of the Transfer of Property Act gives a substantive right to a mortgagee who has obtained a decree for sale u/s 88 to apply for a personal decree where the proceeds of the sale are not sufficient to liquidate the decretal debt and where the balance is legally recoverable from the judgment-debtor. Whether the balance is legally recoverable or not is a question which must depend upon evidence and the Court ought to go into it even though the judgment-creditor had not asserted and proved the right in question in the suit and even though the decree passed u/s 88 provided for no such relief. The decree could not provide for it because the terms of the section and the form prescribed for a decree under it do not allow the relief. The right to a personal decree is given by Section 90 under certain circumstances and these the judgment-creditor must prove. The lower Court is clearly wrong in holding that the Appellant ought to have proved the right he now claims in the suit itself or that he ought to have produced a copy of the mortgage-deed along with the darkhast. The proceedings in the suit and in execution should, because they could, have been called for by the Court from its own records. We reverse the decree and remand the darkhast for disposal on the merits according to law.