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Rama Dattu Vs. Sakharam Lingu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in4Ind.Cas.256
AppellantRama Dattu
RespondentSakharam Lingu and ors.
Excerpt:
transfer of property act (iv of 1882), sections 88 and 90 - decree for sale--proceeds of sale insufficient--application for personal decree for recovery of balance. - - the lower court is clearly wrong in holding that the appellant ought to have proved the right he now claims in the suit itself or that he ought to have produced a copy of the mortgage-deed along with the darkhast......proceeds of the sale are not sufficient to liquidate the decretal debt and where the balance is legally recoverable from the judgment-debtor. whether the balance is legally recoverable or not is a question which must depend upon evidence and the court ought to go into it even though the judgment-creditor had not asserted and proved the right in question in the suit and even though the decree passed under section 88 provided for no such relief. the decree could not provide for it because the terms of the section and the form prescribed for a decree under it do not allow the relief. the right to a personal decree is given by section 90 under certain circumstances and these the judgment-creditor must prove. the lower court is clearly wrong in holding that the appellant ought to have.....
Judgment:

1. Section 90 of the Transfer of Property Act gives a substantive right to a mortgagee who has obtained a decree for sale under Section 88 to apply for a personal decree where the proceeds of the sale are not sufficient to liquidate the decretal debt and where the balance is legally recoverable from the judgment-debtor. Whether the balance is legally recoverable or not is a question which must depend upon evidence and the Court ought to go into it even though the judgment-creditor had not asserted and proved the right in question in the suit and even though the decree passed under Section 88 provided for no such relief. The decree could not provide for it because the terms of the section and the form prescribed for a decree under it do not allow the relief. The right to a personal decree is given by Section 90 under certain circumstances and these the judgment-creditor must prove. The lower Court is clearly wrong in holding that the Appellant ought to have proved the right he now claims in the suit itself or that he ought to have produced a copy of the mortgage-deed along with the darkhast. The proceedings in the suit and in execution should, because they could, have been called for by the Court from its own records. We reverse the decree and remand the darkhast for disposal on the merits according to law.


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