Authored By : Robert Fulton Rampini, Hamilton Wincup Gordon

Robert Fulton Rampini and Hamilton Wincup Gordon, JJ.

1. In this case the respondent obtained a decree upon amortgage bond for the sum of Rs. 433, for costs, and for the sale of themortgaged property. He then proceeded to sell the mortgaged property, and theproceeds of that sale were insufficient to satisfy his decree. He next appliedto be allowed to execute his decree for the balance of the decretal amount, buthe did not make any application under Section 90 of the Transfer of PropertyAct.

2. The Lower Courts have held that it was not necessary forthe respondent to make such an application; and the judgment-debtor now appealsto this Court, and contends that it was not open to the respondent in this caseto execute his decree further against other property of the judgment-debtor, itnot being a decree under the provisions of Section 90 of Act IV of 1882.

3. We think that there is no doubt that the contention ofthe appellant is correct. The terms of the decree which the respondent hasobtained is substantially one under the provisions of Section 88 of theTransfer of Property Act, and it merely gave the respondent a right to sell themortgaged property and to satisfy his decree from the proceeds, but did notexpressly give him any right against other property or the person of thejudgment-debtor. We think, in these circumstances, that it was necessary forhim to apply under Section 90 for a decree for the balance. We may refer inthis connection to the case of Sonatan Shah v. Ali Newaz Khan I.L.R. Cal. 423,in which it was held that such an order should be applied for. We may alsorefer to Batak Nath v. Pitambar Das I.L.R. All. 360, in which it was held thatit was not necessary for the decree-holder in that case to obtain a separatedecree under Section 90 of the Transfer of Property Act, because the decreewhich he had obtained expressly provided that, should the mortgaged propertynot realize sufficient to satisfy the amount decreed, other property of thejudgment-debtor should be liable. Now, in the present case it is quite clearthat the decree which the respondent has obtained contains no such expressprovision. In these circumstances we think that the contention of the appellantin this case must prevail.

4. We therefore decree this appeal with costs.

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Lalla Tirhini Sahaivs. Lalla Hurruk Narain(29.06.1893 - CALHC)