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Ali Muhammad and ors. Vs. Gopal Das - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1888)ILR10All632
AppellantAli Muhammad and ors.
RespondentGopal Das
Excerpt:
mortgage - decree for sale--decree not to be treated as a money-decree--act iv of 1882 (transfer of property act), sections 88, 89, 90. - .....he may ask the court for a decree for the money balance, if it is recoverable personally from the defendant and his other property, and execute that in the ordinary manner as a money-decree is executed. i dismiss the appeal with costs.
Judgment:

Straight, J.

1. I think the learned Judge was right. The appellant decree-holder had obtained a decree on his mortgage-security for sale of the mortgaged property, and it was the business of the Court executing it to proceed in the manner directed by Sections 88, 89 and 90 of the Transfer of Property Act. In my opinion, the presumption should be that immoveable property which a mortgagee has accepted as adequate security for his loan to the mortgagor will, if sold, realise enough to satisfy his charge, and this view seems to me to be borne out by the sections of the Act referred to above, more particularly by the provisions contained in Section 90. I do not think under the law as it now stands, that a mortgagee with a decree for sale of the mortgaged property, the execution of which is now specially provided for in the Transfer of Property Act, can treat such decree as one for money, which entitles him to ask for attachment of the other property of his mortgagor judgment-debtor; on the contrary, what I think the statute means and says, is, that he must first sell the mortgaged property, and if it does not fetch enough to pay his charge, interest and costs, then he may ask the Court for a decree for the money balance, if it is recoverable personally from the defendant and his other property, and execute that in the ordinary manner as a money-decree is executed. I dismiss the appeal with costs.


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