Banerji and Tudball, JJ.
1. This appeal arises out of an application for a decree under Section 90 of the Transfer of Property Act. The appellants held two mortgages over the same property and brought two separate suits on the basis of those mortgages. They obtained two decrees, one on the 13th December 1901, and the other on the 2nd of March 1903, The decree first mentioned was made absolute on the 28th of June 1902, and in execution of it the property comprised in the mortgage was sold and the decree-holders themselves purchased it for Rs. 6,800. The decree upon the first mortgage was satisfied and the surplus of the sale proceeds discharged the amount of the second decree in part. A balance of Rs. 321-10-7 was left unsatisfied and it is for the realisation of this balance that the present application for a decree under Section 90 was made.
2. The court of first instance allowed the application. The lower appellate court dismissed it, and the order of that court was affirmed by the learned Judge of this Court by whom the appeal from the decree of the Court below was heard. From the decision of the learned Judge of this Court this appeal has been preferred under the Letters Patent.
3. Several questions, not free from difficulty, have been raised in the argument before us, but we think the contention of the learned vakil for the respondents, namely, that the decree-holders appellants are not entitled to a decree under Section 90 of the Transfer of Property Act inasmuch as they did not obtain an order for sale under Section 89 and did not cause the mortgaged property to be sold in pursuance of such order, is well founded. That section provides that if the proceeds of a sale directed by Section 89 are insufficient to satisfy the mortgage, a decree may be passed for the balance. In this case no order was obtained, under Section 89 and no sale took place in pursuance of such an order. It was held in Muhammad Akbar v. Munshi Ram Weekly Notes 1899 p. 208 which was followed in the case of Badri Das v. Inayat Khan (1900) I.L.R. 22 All. 404 that if a sale had taken place under a decree on a prior mortgage, that would not entitle a subsequent mortgagee, who had also obtained a decree for sale to apply for and obtain a decree under Section 90. We are bound by these rulings. It cannot be said that in this case the mortgaged property was sold under the decree paseed on the second mortgage, The decree-holders made an application in the execution proceedings relating to the first decree asking the court to inform intending purchasers of the existence of the decree on the second mortgage. If the property be regarded as having been sold subject to the second mortgage, the decree-holders had the right to get the property re-sold under the second mortgage. It so happens that they themselves are purchasers under the sale which took place in-execution of the decree under the first mortgage. Unless therefore they surrender the property and have it resold in execution of the decree under the second mortgage they cannot ask for a decree under Section 90 of the Transfer of Property Act. The other rulings which were referred to in the argument do not touch the point before us and are clearly distinguishable. For the above reasons we are of opinion that the order of the lower appellate court, which has been confirmed by the learned judge of this Court, dismissing the application for execution, is correct though not on the ground on which the order was passed. The case relied upon by the learned Judge of the lower appellate court namely Bageshri Dial v. Muhammad Naqi (1893) I.L.R. 15 All. 331 was considered in Muhammad Akbar v. Munshi Ram to which we have referred above. The question before us did not arise in that case. We dismiss the appeal with costs.