Authored By : S.C. Ghose, Robert Fulton Rampini

S.C. Ghose, J.

1. The question raised in this appeal is what may be thetrue effect, of a decree passed between the parties on the 24th June 1896. Thesuit, in which this decree was passed, was a suit for a certain amount ofmoney, as rent based upon a mortgage bond. In execution of the decree, thedecree-holder asked that certain properties, other than those mentioned in themortgage should be sold in satisfaction of his claim. The judgment-debtorsopposed the application upon the ground that, as this was a mortgage-decree, itwas not open to the decree-holder to sell these properties without exhaustingthe mortgaged properties.

2. The Court below has acceded to the prayer of the decree-holder,and the Judgement debtor has preferred this appeal impugning the correctness ofthat order.

3. It has been argued before us by the learned Vakil for thedecree-holder that the decree should be construed to be a simple money-decree,a lien being declared on the properties mortgaged. The contention on the otherside is that it should be regarded as a mortgage-decree under the Transfer ofproperty Act though not in the form prescribed by that Act.

4. The suit was instituted upon the mortgage after theTransfer of Property Act came into force; and there can be no doubt that so faras the mortgagee, the plaintiff in the suit, was concerned, he asked for thereliefs indicated in that Act, one of the reliefs being "that themortgaged properties be sold for satisfaction of his claim, if the mortgagorfails to pay up within the time which the Court may allow." But theSubordinate Judge, who made the decree, did not apparently follow the cleardirections in the Act; and he worded the decree as follows: It is ordered anddecreed that a decree be passed in favour of the plaintiff in respect of thesum of Rs. 5,387-10-13, together with costs and interest at the rate of six percent, par annum up to the date of realization, and that the mortgagedproperties be made liable (pae bund kea jae) for realization of the decretalmoney." It is to be regretted that the Subordinate Judge should, in spiteof the clear directions in the Transfer of Property Act, not have taken care todraw up a decree as the law directs. But, however that may be, the questionthat we have to consider in this appeal is whether the decree, as made, can beregarded as a mortgage-decree governed by the Transfer of Property Act, orwhether it is a simple money-decree, with a lien only being declared upon themortgaged properties.

5. In the case of Jogemaya Dassi v. Thackomoni Dassi (1896)ILR 24 Cal 473 [LQ/CalHC/1896/129] , which was decided by a Bench of three Judges of this Court, aquestion similar to that which arises in this appeal was discussed; and thelearned Chief Justice in delivering judgment, referring to the terms of thedecree which then came before the Court for consideration, expressed himself asfollows: "In my opinion this was a mortgage-decree, though not in the formprescribed by the Transfer of Property Act, which came into force on the 1stJuly 1882, but in the form in which, as I understand, such decrees had been formany years, and were drawn up in the Mofussil Courts. The decree provides forthe payment of the mortgage debt, for the realization of the mortgaged propertyand payment thereout of the mortgage debt. The claim in this suit, it may beobserved, asks that the claim, i.e., the money claim, should be realized out ofthe mortgaged property, and failing that, from any other property of the defendant.I think the decree of 1882 was a mortgage-decree, i.e., a decree made in a suitto enforce the mortgage in which the mortgagee asked, not merely for a personaljudgment against his debtor, but for the realization of the mortgaged propertyto satisfy his claim." The terms of the decree which the learned Judges inthat case were called upon to consider were as follows: "It is orderedthat the suit be decreed, and that the defendants do pay to the plaintiff theamount claimed with interest thereon at the rate of 1 per cent, per monthduring the pendency of the suit, and costs of this case; the whole to bearinterest as the rate of 1/2 per cent, per month from this date to the date ofrealization, to be realized from the property mortgaged and other properties ofthe defendant." Mr. Justice Macpherson, who concurred with the ChiefJustice in the view that he adopted, said as follows: "But it seems to methat the decree of 1882 is in substance a decree for the sale of the mortgagedproperties. It sets out those properties, and directs that the sum decreedshould be realized from them, which can only mean by the sale of them, andthat; was the relief asked for in the suit. Assuming that Sections 88 and 89 ofthe Transfer of Property Act, which came into force while the suit was pending,applied to the suit, the decree was not, it is true, made in conformity withthem, as, instead of making a decree nisi followed by a decree absolute, theCourt at once made a decree absolute. But the decree has never been questioned,and is now a final decree as between the parties. The case of Chundra Nath Deyv. Burroda Shoonnduru Ghose (1805) ILR 22 Cal 813," (to which I shall haveto refer presently) "is distinguishable, as the Court there in effect heldthat there was no decree for sale," and so on. In a subsequent case beforethe learned Chief Justice and Mr. Justice Banerjee, Fazil Howladar v. KrishnaBandhoo Boy (1897) ILR 25 Cal 580, [LQ/CalHC/1897/126] the learned Judges had also to consider theeffect of a decree in somewhat similar terms; and they agreed with the decisioncome to in the case of Jogemaya Dassi v. Thackomoni Dassi, and held that thedecree was a mortgage-decree. The terms of the decree ran as follows: It isordered that the suit be decreed ex parte, and the sum of Rs. 323 claimed (inthe suit), and the costs of this suit Rs. 34-8, with interest at six per cent,per annum from this day till the date of realization, plaintiff do get from thehypothecated property. If insufficient, defendant to remain personally liable."And it was held, as I have already said, that this ought to be regarded as amortgage-decree in terms of the Transfer of Property Act.

6. In the case of Chundra Nath Dey v. Burroda ShoonduryGhose (1895) ILR 22 Cal 813, [LQ/CalHC/1895/56] referred to in the judgment of Macpherson, J., inJogemaya Dassi v. Thackomoni Dassi (1896) ILE 24 Cal 473, and upon whichreliance has been placed by the learned Vakil for the decree-holder, the termsof the decree which had to be considered by the Court were: "The suit isdecreed ex parte. The plaintiff to obtain the amount of his claim and costs ofthe suit with interest at six per cent, per annum until the date ofrealization, and the mortgaged property to remain liable for the satisfactionof the debt, etc." And it was held that this was not a mortgage-decree,and that it was not, therefore, governed by the Transfer of Property Act.

7. It seems to me upon a consideration of the differentrulings that the question for consideration in a case like this is, whetherthere is an order in the decree for sale of the mortgaged properties, or thedecree simply declares a lien upon those properties. As already stated, themortgagee in the present case unquestionably asked for a decree in terms of theTransfer of Property Act and for the sale of the properties mortgaged. TheCourt, however, did not make a decree in exact terms of that Act. But there canbe no doubt that what the Court really meant to do, and did, was to make adecree ordering that the properties mortgaged be sold for the realization ofthe amount decreed to the mortgagee. The terms of the decree are more similarto those in the cases of Jogemaya Dassi v. Thackomoni Dassi and Fazil Howladarv. Krishna Bandhoo Roy, to which I have already referred, than the terms whichhad to be considered in the case of Chundra Nath Dey v. Burroda ShoonduryGhose.

8. In this view of the matter, the decree in questionshould, in my opinion, be regarded as a mortgage-decree governed by theTransfer of Property Act, though not made in the form prescribed by that Act.It follows from this that it is not open to the decree-holder to ask in thefirst instance for the sale of properties other than the properties mortgagedbefore exhausting the mortgaged properties, and without obtaining an order suchas is prescribed by Section 90 of the Transfer of Property Act.

9. The result is that this appeal must be allowed, thedecree-holder being at liberty to proceed against the mortgaged properties inthe first instance, and then to take such steps as he may be advised, to sellthe other properties of the judgment-debtor.

Robert Fulton Rampini, J.

10. I cannot think that the decree in this case can properlybe said to be a decree under the provisions of the Transfer of Property Act.The decree is to the effect that, "the mortgaged property shall be madeliable (pae bandh) for the realization of the decretal amount." Thevernacular expression pae bandh means "tied by the leg" or"fettered"--that is "incumbered." It does not seem to me toimply sale. No doubt the decree directs that the mortgaged property shall be"made" liable. But this is certainly not a clear direction that theproperty is to be sold. The mortgagee undoubtedly in para 3 of his plaint askedfor a decree under the provisions of the Transfer of Property Act; but theCourt, whether intentionally or through inadvertence, does not appear to me tohave given him such a decree as he sought for. I am supported in this view bythe case of Chundra Nath Dey v. Burroda Shoondury Ghose (1895) ILR 22 Cal 813 [LQ/CalHC/1895/56] .The decree in that case was to the effect that the property was "to remainliable for the satisfaction of the debt." On the other hand the cases ofJogemaya Dassi v. Thackomoni Dassi, and Fazil Howladar v. Krishna Bandhoo Boy,have been referred to on behalf of the appellant. These are no doubtauthorities for holding that a decree, such as the present one, though not inform a decree under the provisions of the Transfer of Property Act, may yet beregarded and given effect to as such.

11. Personally, I am most reluctant to put any obstacle inthe way of decree-holders who seek to recover monies, which Courts after fullenquiry have held them to be entitled to. But in the face of the two lastmentioned rulings, I do not think I would be justified in dissenting from theconclusion at which my learned brother has arrived in this case. I, therefore,concur in decreeing this appeal.

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Lal Behary Singh and Ors. vs. Habibur Rahman and Ors.(23.08.1898 - CALHC)