Skip to content


Damodar Sakarchand Vs. Vyanku Gangaram - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 21 of 1906
Judge
Reported in(1907)9BOMLR199
AppellantDamodar Sakarchand
RespondentVyanku Gangaram
Excerpt:
transfer of property act (iv of 1882), section 90-mortgage decree-sale of the property after the usual period of six month-personal liability for the unpaid balance-mortgage decree should only rescue liberty to apply attachment of property-son born to mortgagor after the sale of the mortgaged property but be fore the sale of the other property under the personal decree-son entitled to time exempted his share in the property from sale.;on the 4th march 1902, a dicree on a mortgage was passed in favour of directing that the mortageed properly should be sold on failure to pay the money within six months and that if the sale proceeds were insufficient to pay off the amount the balance was to be recovered from g personally. in june 1903 the mortgage property was sold in execution of the..........17th of the same month, the decree-holder purporting to proceed under the personal decree for the balance, applied for attachment of a house not comprised in the mortgage. on the following day the order for attachment was made and on the 19th of june the house, to which this suit relates, was actually attached.2. on july 2nd the judgment-debtor, gangaram, applied to have the sale of the mortgaged property set aside and by an order passed on the 4th of august the sale was set aside.3. on the 17th of august the judgment-debtor applied to have the attachment of the house raised. the court directed the attachment to be maintained, but ordered that the property should not be sold until the proceeds were found to be insufficient.4. in september 1904 the plaintiff yyanku was born, his father.....
Judgment:

Lawrence Jenkins, C.J.

1. On the 8th of March 1902, a decree on a mortgage was passed in favour of the defendant Damodar Sakar. chand. It was thereby directed in effect that on default in pay. ment of the mortgage-money within six months the property should be sold and that if the sale proceeds were insufficient to pay the amount due on the mortgage the balance was to be recovered from the defendant Gangaram personally. On the 7th of November 1902, the plaintiff applied for a sale of the mortgaged property and in June 1903 it was sold for Rs. 575. Subsequently, on the 17th of the same month, the decree-holder purporting to proceed under the personal decree for the balance, applied for attachment of a house not comprised in the mortgage. On the following day the order for attachment was made and on the 19th of June the house, to which this suit relates, was actually attached.

2. On July 2nd the judgment-debtor, Gangaram, applied to have the sale of the mortgaged property set aside and by an order passed on the 4th of August the sale was set aside.

3. On the 17th of August the judgment-debtor applied to have the attachment of the house raised. The Court directed the attachment to be maintained, but ordered that the property should not be sold until the proceeds were found to be insufficient.

4. In September 1904 the plaintiff Yyanku was born, his father being Gangaram the judgment-debtor.

5. On the 26th of November 1904, the mortgaged property was sold for Rs. 456,

6. On the 5th of January 1905, the decree-holder applied for the sale of the house and thereupon the minor Vyanku applied to have the attachment removed from his half-share in the house. His application was refused.

7. Then the minor commenced this suit, by his next friend, his mother Rangubai, asking for a declaration of his ownership of an undivided half of the house and for removal of the attachment from it. The first Court dismissed the suit with costs, but on appeal the attachment was set aside by the District Court. Prom this the present appeal is preferred. The order setting aside the attachment is unqualified and, so far as it purports to do more than remove the attachment from the plaintiff's moiety it is manifestly erroneous as being in excess of what is sought in the plaint. The judgment of the District Court proceeds on the assumption that the house was attached before any sale of the mortgaged property. But this overlooks the sale effected in June 1903 and if the removal of the attachment from the plaintiff's moiety is to be supported it must be on other grounds-Now the decree was passed in disregard of the provisions of Section 90 of the Transfer of Property Act in so far as it directs personal payment by Gangaram. It is clear from the words of the section that this direction should have been in a supplemental decree to be passed when the net proceeds should be found to be in* sufficient. The original drcree should merely have reserved to the plaintiff liberty to apply for a decree under Section 90.

8. But though the decree is erroneous, we must sec how far in the circumstances it justified an attachment.

9. The personal decree was contingent on the ascertainment of the balance and only became operative and capable of execution when that balance was ascertained. Until then the amount of the debt, for which alone the personal decree was passed, could not be stated as required by Section 235(g) of the Civil Procedure Code.

10. Then was the balance ascertained when the attachment of the 17th of June was made? Undoubtedly not. There had been no adjustment of accounts, the whole of the purchase-money had not been paid into Court and there was no kind of pronouncement by the Court as to what the balance was. Even the application for execution contained no statement of the debt for which the personal decree was passed and that was because the amount of the debt had not been ascertained. Then is it open to the minor plaintiff 'to rely on this objection? We think it is. He is (in our opinion) entitled to establish any circumstance which affects the validity of the attachment as against his interest in the property.

11. The result then is that the decree of the lower appellate Court must be varied by directing that the house to the extent of the plaintiff's interest therein be released from attachment.

12. As the appellant has succeeded in part and failed in part, each party should bear his own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //