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Kaji Inus Kaji Bapu Vs. Kaji Inus Kajiba - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 757 of 1905
Judge
Reported in(1906)8BOMLR576
AppellantKaji Inus Kaji Bapu
RespondentKaji Inus Kajiba
Excerpt:
transfer of property act (iv of 1882), section 99-attachment of mortgaged property-sale in execution-separate suit.; section 99 of the transfer of property act 1882, forbids the sale of the mortgaged property in execution of the decree at the instance of the mortgagee : but it is no bar to an attachment of the property. - lawrence jenkins, k.c.i.e., c.j.1. we are of opinion that the courts rightly decided that the applicant was not entitled to a sale, for, we think, that section 99 of the transfer of property act is a bar.2. but that section is no bar to an attachment.3. we therefore think that the appellant before us is entitled to have the property attached.4. but this prayer for attachment was not put forward until the ingenuity of mr. bodas in this court discovered this point in his favour, so we cannot give him any costs.5. we make no order as to costs of this appeal except that each party will bear his own costs; but the applicant must pay the costs of both the courts below.6. we send back the case to the first court in order that an order for attachment may be made.
Judgment:

Lawrence Jenkins, K.C.I.E., C.J.

1. We are of opinion that the Courts rightly decided that the applicant was not entitled to a sale, for, we think, that Section 99 of the Transfer of Property Act is a bar.

2. But that section is no bar to an attachment.

3. We therefore think that the appellant before us is entitled to have the property attached.

4. But this prayer for attachment was not put forward until the ingenuity of Mr. Bodas in this Court discovered this point in his favour, so we cannot give him any costs.

5. We make no order as to costs of this appeal except that each party will bear his own costs; but the applicant must pay the costs of both the Courts below.

6. We send back the case to the first Court in order that an order for attachment may be made.


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