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Heptulla Abdul HusseIn Vs. Mahomed Bala - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Judge
Reported in2Ind.Cas.511
AppellantHeptulla Abdul Hussein
RespondentMahomed Bala
Excerpt:
.....in the first instance--decree-holder's power to treat direction for recovery of balance as a money-decree--assignment of decree--registration. - - the appellant by the present darkhast seeks to get rid of the bar of registration by treating the decree as one for money because the decree entitled its holder to recover the decretal amount from property of the judgment-debtor other than that mortgaged in case he should fail to recover the whole of that amount from the latter property but the decision of this court must be regarded as a decision that the decree is not a money decree. 369 in the case of a decree like the present it is open to its holder to give up his right to recover the decretal amount from the property mortgaged and elect to proceed against other property of the..........property but the decision of this court must be regarded as a decision that the decree is not a money decree. it may be that, as held by the allahabad high court in pirbhu narain singh v. amir singh 29 a. 369 in the case of a decree like the present it is open to its holder to give up his right to recover the decretal amount from the property mortgaged and elect to proceed against other property of the judgment-debtor, but that right of election by itself cannot, in. our opinion, convert a mortgage decree into a money decree for the purposes of registration. the decree in the present case directed that its amount should be recovered from the mortgaged property. first and that other property should be proceeded against only in the event of the former property failing to satisfy the.....
Judgment:

1. In dealing with the previous darkhast in Appeal No. 91 of 1905, this Court, treating the decree as one on a mortgage, held the assignment relied on by the present appellant as inoperative for want of registration. The appellant by the present darkhast seeks to get rid of the bar of registration by treating the decree as one for money because the decree entitled its holder to recover the decretal amount from property of the judgment-debtor other than that mortgaged in case he should fail to recover the whole of that amount from the latter property But the decision of this Court must be regarded as a decision that the decree is not a money decree. It may be that, as held by the Allahabad High Court in Pirbhu Narain Singh v. Amir Singh 29 A. 369 in the case of a decree like the present it is open to its holder to give up his right to recover the decretal amount from the property mortgaged and elect to proceed against other property of the judgment-debtor, but that right of election by itself cannot, in. our opinion, convert a mortgage decree into a money decree for the purposes of registration. The decree in the present case directed that its amount should be recovered from the mortgaged property. first and that other property should be proceeded against only in the event of the former property failing to satisfy the decree fully. There were two rights given by the decree;' the second depended upon the exercise of the first which was that arising out of a mortgage decree. The two could not be separated; and if for the exercise of that right registration was necessary, it was equally so for the exercise of the other right. On these grounds we must reverse the decree and reject the darkhast with costs throughout on the respondent.


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