Authored By : William Comer Petheram, Beverley

William Comer Petheram, C.J. and Beverley, J.

1. It is not necessary to go over the facts of this case, asthey are fully stated in the judgments of the Courts below, and the onlyquestion we have to consider is whether a decree in this form, in a suitbrought after the Transfer of Property Act came into operation, can be executedby sale of the mortgaged property.

2. The suit was upon a mortgage deed to recover the moneysecured by the deed upon mortgage of various properties, of which that now inquestion was one, though at the time of the mortgage this particular propertywas in the possession of a tenant for life, the mortgagor having, at that time,only a reversionary interest in it.

3. The operative part of the decree was as follows:"The suit is decreed ex parte. The plaintiff to obtain the amount of hisclaim and costs of the suit with interest at 6 per cent, per annum until thedate of realization, and the mortgaged property to remain liable for thesatisfaction of the debt, etc."

4. The Subordinate Judge thought that, as the property nowattached was part of the property included in the mortgage, it could not, byreason of the provisions of Section 99 of the Transfer of Property Act, bebrought to sale under the attachment without further proceedings under Section67 of the Act.

5. The learned District Judge has formed a differentopinion. He thinks that, although the decree was not either in form or insubstance such a decree as could be passed in an action brought under Section67, still the action was, in fact, brought under that section, and that forthat reason Section 99 did not apply to the case.

6. We think that the view taken by the Subordinate Judge isthe correct one. The objects of Sections 65, 86, 88 and 99 of the Act are toprevent mortgagees from realizing their securities, except in the wayprescribed by the Act, and unless the action in which it is sought to realizethe security is one in which the procedure followed is that prescribed by theAct, we think it is within the provision of Section 99, and that the mortgagedproperty cannot be sold in it. We accordingly set aside the order of theDistrict Judge, and restore so much of that of the Subordinate Judge asdirected the case to be struck off, as the attached property cannot be sold inthis execution proceeding. As, however, Section 99 does not provide that themortgaged property shall not be attached, we do not restore so much of hisorder as directs that the property be released from attachment.

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Chundra Nath Dey and Ors. vs. Burroda Shoondury Ghose(04.06.1895 - CALHC)