1. The Appellant obtained a decree for costs in the PrivyCouncil and she applied for the execution of the said decree against the suretyand the properties he had charged as security given under sec. 602 of the old CivilProcedure Code. It was objected that she could not realise the security withouta suit under sec. 67 of the Transfer of Property Act. In support of thiscontention of the Respondent reliance was placed on the judgment of this Courtin Tokhan Singh v. Girwar Singh I. L. R. 32 Cal. 494 (1905). The Court belowgave effect to this contention and hence this appeal. It is argued that TokhanSinghs case I. L. R. 32 Cal. 494 (1905) was decided under sec. 99 of theTransfer of Property Act which is no longer law, and Order 34, rule 14, of thepresent Civil Procedure Code of 1908, which stands in its place, is notapplicable to the present case. Sec. 99 of the Transfer of Property Actprovided that where a mortgagee in execution of a decree for the satisfaction ofany claim whether arising under the mortgage or not attaches the mortgagedproperty, he shall not be entitled to bring such property to sale otherwisethan by instituting a suit under sec. 67, etc. Order 34, rule 14, is"where a mortgagee has obtained a decree for the payment of money insatisfaction of a claim arising under a mortgage, he shall not be entitled tobring the mortgaged property to sale, etc.

2. The main alteration seems to be the deletion of the words"or not", and the prohibition now applies only to cases of decreesfor payment of money in satisfaction of a claim arising under the mortgage. Thequestion therefore is whether the decree of the Appellants is one within themeaning of this rule. The decree is not against the surety. The claim againsthim is based entirely on the security-bond which creates the mortgage. Theclaim against the security is a claim arising under the mortgage, and if thedecree obtained by the Appellant can be treated as a decree for the payment ofmoney in satisfaction of such a claim, the rule does apply and the mortgagedproperty cannot be sold except under a decree under sec. 67 of the Transfer ofProperty Act. If it is not such a decree, still the mortgaged property cannotbe sold as such without a decree in a suit under sec. 67 of the Transfer ofProperty Act. So far as this point is concerned, the reason seems to be thatthe equity of redemption may have been dealt with in the meantime, and it wouldlead to multiplicity of suits and other loss to the mortgagor to sell theproperty subject to unascertained claims. It is contended however that theAppellant can realise the personal security under sec. 145 of the CivilProcedure Code. This question would depend upon the construction of thesecurity bond. The bond is in accordance with the rules of the Court and is setout at page 10 of the Paper-book. It sets out that the surety is bound in thesum of Rs. 4,000 to the Appellant and to the Registrar of the Court to be paidto them, etc. It then goes on to say that the said surety shall pay the costsup to Rs. 4,000, and on such payment the bond will become void and in defaultthe mortgaged properties will be sold. We think, that this does create a,personal liability, and if the Appellant gives up his rights as mortgagee anddoes not seek to sell the mortgaged properties as such, he can realise theamount of cost, up to Rs. 4,000, from the person and other propertied of thesurety. The application made by the Appellant was for recovery of the costsfrom the person and property of the surety, and so far she was within herrights. She however wanted to sell the mortgaged properties and described themas such and did not expressly indicate her election to abandon her rights as amortgagee under the security bond. In this view of the case, we think that theorder of the lower Court was so far wrong as it did not allow her to proceed asupon a personal bond. The application however was misleading, and we allow theappeal with the qualification stated above, but without costs in either Court.The application for execution will proceed subject to the amendments suggested.

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Chandrabati vs. MadhoProsad (08.07.1914 - CALHC)