Sonatun Shah and Others vs Ali Newaz Khan and Another

Prinsep and Ghose, JJ.—The appellant obtained a decree within the terms of Section 88 of the Transfer of Property Act for sale of the mortgaged properties. These properties, when sold, failed to realize the of the mortgage debt. The mortgagee, decree-holder, accordingly made an application somewhat vaguely expressed, but evidently intended to ask for a decree within the terms of Section 90 of the Transfer of Property Act for the sale of other properties belonging to the judgment-debtor. The Subordinate Judge has refused to make any decree or order under 9. 90, considering himself in some manner restricted by the action of his predecessor in passing the previous decree u/s 88. We think that this is a mistaken view of the law. The terms of Section 90 in our opinion clearly contemplate a decree in the suit for recovery of the mortgage money after sale of the mortgaged properties under a decree given u/s 88. The decree-holder can then apply to the Court, and if he can show that, after the sale of the mortgaged properties, there is still a balance due to him under the decree obtained u/s 88, and that that amount is legally recoverable from the judgment-debtor, mortgagor, he can ask for and obtain a decree within the terms of Section 90 for realization of the balance from other properties of the debtor. We accordingly set aside the order of the Subordinate Judge, and if we had before us sufficient materials, we should ourselves have passed a decree u/s 90. But in the absence of sufficient information, we think it right to set aside the order of the Subordinate Judge and to direct that, after making the necessary enquiries, he do pass a decree u/s 90, and then allow the execution to proceed. It is not necessary, as contended by the respondents'' vakeel, to bring a separate suit for this matter. We give no costs in this appeal.