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Mallikarjunadu Setti and Narayanamurti Ayyar Vs. Lingamurti Pantulu and Valliappa Chetti - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in(1902)ILR25Mad244
AppellantMallikarjunadu Setti and Narayanamurti Ayyar;karuppan Chetti and ors.
RespondentLingamurti Pantulu and Valliappa Chetti;tandavaraya Desikar and anr.
Cases ReferredTiluok Singh v. Parsotein Proshad I.L.R.
Excerpt:
transfer of property act - act iv of 1882, sections 88, 89--application for order for decree absolute--appeal--civil procedure code--act xiv of 1882, sections 244, 310-a, 311, 540--sale of mortgaged property in execution of mortgage-decree--proceeding in execution. - - the further order of the court directing that the mortgagor be put in possession as he has paid the money, is clearly nothing but execution of the decree. so, in the same way, when the mortgagor has failed to pay the amount mentioned in the decree, it is further decreed that the property be sold, and the subsequent order that the property be sold as the money has not been paid must also be held to be an order in execution and not merely a confirmation of the decree. 7. the civil procedure code did, however, provide as.....davies, j.1. in appeal against appellate order no. 35 of 1901 and appeal against order no. 48 of 1900.--there can be no doubt that the provisions of the code of civil procedure are applicable to cases tried under special acts, if the trials are in a court of civil judicature and if there are no rules in the special acts inconsistent with, or substituted for, the general rules of the code of civil procedure. now, in the transfer of property act, after an order for sale in a mortgage suit has been made, no further rules are laid down as to the subsequent steps to be taken for the conduct of the sale and other incidents attaching to it. these matters must therefore be governed by the civil procedure code as the transfer of property act is silent in regard to them. the rules for the conduct.....
Judgment:

Davies, J.

1. In Appeal against Appellate Order No. 35 of 1901 and Appeal against Order No. 48 of 1900.--There can be no doubt that the provisions of the Code of Civil Procedure are applicable to cases tried under special Acts, if the trials are in a Court of Civil Judicature and if there are no rules in the special Acts inconsistent with, or substituted for, the general rules of the Code of Civil Procedure. Now, in the Transfer of Property Act, after an order for sale in a mortgage suit has been made, no further rules are laid down as to the subsequent steps to be taken for the conduct of the sale and other incidents attaching to it. These matters must therefore be governed by the Civil Procedure Code as the Transfer of Property Act is silent in regard to them. The rules for the conduct of sales by a Civil Court are to be found in Chapter XIX (G) of the Civil Procedure Code and there is nothing in that chapter excluding from its operation sales in pursuance of mortgage decrees under the Transfer of Property Act. Section 311 of the Code in that chapter provides one mode of rescinding a sale before it has been confirmed, namely, by showing that there was material irregularity in publishing or conducting the sale by which substantial injury was caused. Section 310-A provides another mode by which a sale may be rescinded, namely, by allowing the judgment-debtor thirty-days' grace under certain conditions for paying up the decree amount on account of which the sale was made. It seems to me that, if either of these provisions applies to sales in execution of any decree including a mortgage decree, the other must also do so. The fact that Section 310-A was enacted at a later date than Section 311 and after the Transfer of Property Act had come into operation cannot, in my opinion, make any difference. Section 310-A being incorporated as it is in the Civil Procedure Code, now forms part and parcel of it. When property is sold in execution of a mortgage decree it is not sold as mortgaged property, but as the absolute property of the quondam mortgagor treated as a judgment-debtor. It has been restored to his full ownership by operation of law (see Sections 87, 89 and 93 of the Transfer of Property Act). Therefore, there is no reason to treat it differently from any other immoveable property belonging to the judgment-debtor.

2. My answer to the references accordingly is that both Sections 310-A and 311 of the Code of Civil Procedure apply to sales in pursuance of mortgage decrees.

3. In Appeal against Order No. 156 of 1900.-- With regard to the question raised in this reference, namely, whether an appeal lies against an order refusing to make an order absolute upon an application made under Section 89 of the Transfer of Property Act, I think that it lies as from an order passed in execution and not as from a final decree. I entirely agree with the conclusion arrived at by my learned colleague, Mr. Justice Bhashyam Ayyangar, especially as it elaborates and confirms the view I took of the matter so far back as 1893 in the case of Bamasami v. Sami I.L.R. 17 Mad. 96 The late Chief Justice, Sir Arthur Collins, and myself there held that a decree passed under Section 92 of the Transfer of Property Act is a final decree and that orders passed under Section 93 were merely supplementary to the decree made under Section 92, showing whether the terms of the decree have or have not been fulfilled, in other words, orders for executing the decree in such respects as it has to be executed. For instance, the decree directs if the mortgagor has paid the money mentioned in the decree to the mortgagee, that the mortgagor shall, if necessary, be put into possession of the mortgaged property. The further order of the Court directing that the mortgagor be put in possession as he has paid the money, is clearly nothing but execution of the decree. It cannot be said to be a confirmation of the decree which it is merely carrying out. So, in the same way, when the mortgagor has failed to pay the amount mentioned in the decree, it is further decreed that the property be sold, and the subsequent order that the property be sold as the money has not been paid must also be held to be an order in execution and not merely a confirmation of the decree. To hold otherwise would be to hold that one part of the decree is final and that another part is not. There cannot be two final decrees on the same matter in any suit. So that, if the decree under Section 92 is a final decree in respect to the delivery of possession of the property to the mortgagor in case he pays, it is also final in respect to the sale of the property in case he does not pay. No doubt' the decree is a conditional decree, but the ascertaining which of its conditions has been fulfilled and the passing of orders consequent thereon cannot but be matters relating to its execution. It has been the practice of this Court to treat an application in execution for an order for sale in pursuance of a mortgage decree as tantamount to an application to make an order absolute for sale although these terms are not used. This could never have been permitted if it had been deemed necessary that before making an application for an order for sale in execution, a prior application for making the decree for sale absolute by an order had to be applied for and granted. So that the practice of this Court has been in accordance with the principle that a decree for sale is a final decree and the order for sale, whether it be called absolute or not, is obtainable only in execution of that final decree.

Benson, J.

4. In Appeal against Appellate Order No. 35 of 1901 and Appeal against Order No. 48 of 1900.--I am of opinion that Sections 310-A and 311 of the Civil Procedure Code do apply to sales of mortgaged property by order of the Court. There can, I think, be no doubt but that such sales may properly be said to be 'under,' i.e., conducted under the authority and in accordance with the provisions of Chapter XIX of the Civil Procedure Code. Before the Transfer of Property Act was passed such sales could only have been conducted in any part of India 'under' the Civil Procedure Code and even since the Transfer of Property Act was passed such sales can, in those Provinces to which the Transfer of Property Act has not been extended, be conducted only under the Civil Procedure Code. In those provinces to which the former Act has been extended, I think it may properly be said that such sales are 'under' both Acts, that is to say, they are held under the authority of, and are conducted in accordance with, the provisions of the Civil Procedure Code generally, and such special provisions, if any, as are to be found in the Transfer of Property Act. Both Acts must be read together and effect must be given to the provisions of both unless they are found to be inconsistent.

5. In this view the right given by Section 311, Civil Procedure Code, to apply to the Court to set aside a sale on the ground of material irregularity, must obviously apply to sales of mortgaged property by order of the Court, for there is nothing in the Transfer of Property Act inconsistent with that section. I think that Section 310-A also applies to such sales and for the same reason, viz., that there is nothing in it inconsistent with the Transfer of Property Act.

6. When the Civil Procedure Code and the Transfer of Property Act were passed in 1882 there was no provision of law corresponding to that now contained in Section 310-A, whereby the Court could set aside a sale after it had taken place, on the judgment-debtor paying up the decree-debt and compensating the purchaser for his disappointment. The law was then in this respect just the same in regard to sales of mortgaged property and sales of other property attached and sold by the Court in execution of a decree. The Court had power, in its discretion, to adjourn the sale, but once the sale had taken place the judgment-debtor could not get it set aside by any payments to the decree-holder and purchaser. The Transfer of Property Act in Sections 87 and 93 provided for working out decrees for foreclosure and redemption, respectively, and in both cases gave the Court power to postpone from time to time the day named in the decree for payment, This power of postponement before making an order absolute for foreclosure was necessary in order to prevent hardship in certain cases. It was not given by the Civil Procedure Code, so it was necessary to provide for it in the Transfer of Property Act.

7. The Civil Procedure Code did, however, provide as already stated for the adjournment, from time to time, of sales of immoveable property generally, and as the Civil Procedure Code applied to sales of mortgaged property as well as to sales of other property, there was no need to make any special provision in Section 88 or Section 89 of the Transfer of Property Act for the postponement of sales of mortgaged property.

8. Until an order absolute for foreclosure had been made the Court could, under the Transfer of Property Act, postpone the date fixed in the decree for payment of the mortgage money, and even after an order absolute for sale had been made, the Court Could, under the Civil Procedure Code, adjourn the sale. But once an order absolute for foreclosure or for sale had been made the mortgagor had no further right to redeem the property. Section 89 provided that when an order absolute for sale was passed the right to redeem was thereupon extinguished and the security was also extinguished, but (as pointed out by Mr. Maopherson, 'Law of Mortgage in British India,' 7th edition, page 697) until the sale was effected the mortgagor had the right as a debtor to discharge the decree-debt and thus obviate the necessity for a sale. In that case the property, being freed from the encumbrance, reverted to the mortgagor in full ownership. This was how the law stood in 1882 in places where the Transfer of Property Act was in force, and it was in this state of the law that Act V of 1894 was passed, whereby Section 310-A was introduced into the Civil Procedure Code. The policy of this section is well known to those who have followed the course of Indian legislation in recent years and is succinctly set forth in 'the statements of objects and reasons' with which the Bill was introduced into the Legislative Council. That policy, briefly stated, was to obviate the hardships arising from the fact that immoveable property sold by auction in execution of a decree seldom realized an adequate or even a reasonable price, and it was therefore desirable to give persons whose property was so sold a right to recover it on paying to the decree-holder the sum for which it was brought to sale, and also to the purchaser fair compensation for the cancellation of his purchase. The section declares, without reservation, that 'any person whose immoveable property has been sold under this chapter may at any time within thirty days from the date of the sale' have it set aside on payment of the judgment-debt, and of compensation to the purchaser. There is no reservation or exception in the case of persons whose immoveable property has been sold under a decree in a suit on a mortgage. The terms of the section include such sales, and effect should be given to its terms unless they are inconsistent with any special provision of law. I cannot see how they are in any way inconsistent with the provisions of the Transfer of Property Act relating to sales of mortgaged property. The object of such sales is to obtain for the mortgagee the mortgage money due to him. When the property has been sold the Court has done all that can be done to obtain the money from the property mortgaged. The mortgagee has no longer any claim on the property and is not concerned with its further disposal. Everything which the Transfer of Property Act says shall be done in regard to the property has been done, and the Act has no further concern with it. I do not think it is correct to say that the application of Section 310-A in effect provides for an extension of the time for redemption. It has nothing to do with the redemption of the mortgage, but provides for the restoration of the property to the original owner on certain terms after his right to redeem the mortgage has been extinguished (Section 89, Transfer of Property Act) and the property has been sold in execution of the decree. It is just the same in the case of property attached and sold in execution of decrees other than mortgage decrees. When the property has been sold the judgment-creditor has no longer any concern with the property. In both cases the only person then interested is the purchaser. It is not until this stage is reached that Section 310-A comes into operation. In pursuance of the policy which dictated its enactment it says that the owner of the property may even at this stage get back the property, provided he at once, that is, within thirty days, pays down not only a sum sufficient to pay what the decree-bolder has realized by the sale, but the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, (which may be much more than the amount actually realized) and also a sum equal to 5 per cent, of the purchase money to be paid to the purchaser as compensation for his disappointment and any loss that he may have incurred by having his purchase thus set aside. It will be seen that the decree-holder cannot suffer, but may benefit, by action taken under Section 310-A. The purchaser is the only person who may suffer, but the Legislature has deliberately imposed this risk on him, and he receives compensation. I think it is impossible to draw any distinction, either in equity or under the terms of the law, between the position of the several persons concerned when the property has been sold under a decree in a mortgage suit or under a decree in any other suit, and, in my judgment, Section 310-A applies equally to both classes of debtors. This was the view taken by a Bench of this Court of which I was a member in Tirumal Rao v. Syed Dastaghiri Miyah I.L.R. 22 Mad. 286 and also by the High Courts of Allahabad Raja Ram Singhji v. Chunni Lal I.L.R. 19 All. 205 and Bombay Krishnaji v. Mahadev Vinayak I.L.R. 25 Bom. 104. For the reasons stated I am respectfully unable to accept the contrary view adopted by the High Court of Calcutta Kedar Nath Raut v. Kali Churn Ram I.L.R. 25 Calc. 703.

9. In Appeal against Order No. 156 of 1900.--As regards the question raised in Appeal against Order No. 156 of 1900, I have had an opportunity of perusing the judgment of my learned colleague, Sir Bhashyam Ayyangar, J., and I entirely concur in his conclusions, that an application under Section 89, Transfer of Property Act, must be treated as, in effect, an application for execution of the decree passed under Section 88, that it is governed by Article 179 of the Limitation Act and that an order thereon is appealable as an order passed under Section 244, Civil Procedure Code. I have nothing to add to his exhaustive argument.

Bhashyam Ayyangar, J.

10. The questions referred to a Full Bench in these three cases are respectively the following:

(i) Whether Section 310-A, Civil Procedure Code, is applicable to a sale of mortgaged property which has taken place in execution of a mortgage decree;

(ii) Whether Section 311, Civil Procedure Code, is applicable to such a sale;

(iii) Does an appeal lie against an order refusing to make an order absolute for sale upon application made under Section 89 of the Transfer of Property Act.

11. I propose to consider these three references in one judgment as they all depend in a great measure upon one and the same question, viz., the relation between chapter XIX of the Code of Civil Procedure on the 'execution of decrees' and chapter IV of the Transfer of Property Act on 'mortgages of immoveable property.'

12. Dealing with the first two questions together, I am clearly of opinion that the provisions of Sections 310-A and 311 of the Civil Procedure Code are applicable to sales of mortgaged property in execution of mortgage decrees even in provinces in which the Transfer of Property Act is in force.

13. The Transfer of Property Act was passed on the 17th of February 1882 and came into force in this Presidency on the 1st July; the Civil Procedure Code was passed on 17th March and came into force on the 1st of June 1882, Section 310-A being introduced into it by an Amendment Act (V) passed in 1894. Though the Transfer of Property Act does not relate to transfer of property by operation of law or by or in execution of decrees or orders, yet an exception is made in regard to the operation of Section 57 and chapter IV of the Act [Section 2 (d) of the Transfer of Property Act]. It is equally clear that chapter XIX of the Civil Procedure Code relates not only to the execution of simple decrees for payment of money, but also to mortgage decrees directing sale of immoveable property; and in provinces to which the Transfer of Property Act has not been extended, the enforcement and execution of mortgage decrees is regulated solely by chapter XIX, Civil Procedure Code; Sections 223 (c), 295 (c). 320 and 322, Civil Procedure Code, directly refer to decrees directing the sale of immoveable property for the discharge of mortgage debts; and sales in execution of mortgage decrees must be conducted only under the provisions of chapter XIX, Civil Procedure Code, and the rules which it is obligatory on the High Court to make under Section 287 of the Civil Procedure Code.

14. Sections 87, 89 and 93 of the Transfer of Property Act prescribe certain rules for the enforcement of decrees in foreclosure suits, in suits for sale and in suits for redemption, such rules being, in my opinion, supplemental to those prescribed by chapter XIX of the Civil Procedure Code. Speaking generally, I may mention that with the exception of Sections 278 to 284 (relating to claims preferred to or objection made to the attachment of property in execution of a decree) and possibly a few more sections, all the other sections are applicable of their own force to the execution of decrees on mortgages. Section 649, Civil Procedure Code, places this matter beyond all doubt. That section extends the rules contained in chapter XIX to the execution of any judicial process for the sale of property which may be ordered by a Civil Court in any civil proceeding. Such provision is made in view to extend the provisions of chapter XIX which relates only to suits, to sales which may have to be made by a Civil Court in some proceedings other than proceedings in a suit, It is thus obvious that all sales which may have to take place in execution of decrees passed in suits are governed and regulated by chapter XIX, Civil Procedure Code.

15. Section 104 of the Transfer of Property Act empowers the High Court--without making it obligatory on the High Court to do so, as in the case of rules contemplated by Section 287, Civil Procedure Code--to make rules, consistent with the Act, for carrying out the provisions 'of chapter IV of the Act. No rules have yet been framed in this Presidency under this section--so far, at any rate, as Courts subject to its appellate jurisdiction are concerned. But, in my opinion, the rules contemplated by Section 104 cannot affect the question now under consideration, and indeed, so far as the Courts subject to the superintendence of the High Court are concerned, no rule could be framed under that section inconsistent with Sections 310-A and 311, Civil Procedure Code, or any other enactment for the time being in force. Section 104 of the Transfer of Property Act must be read subject to Section 15 of the Charter Act which provides that the High Court shall have power to make and issue general rules for regulating the practice and proceedings of all Courts which may be subject to its appellate jurisdiction, provided that the rules so made are not inconsistent with the provisions of any law in force, and shall, before they are issued, have received the sanction of the Governor-General in Council or of the Governor in Council of Madras or Bombay as the case may be. If Section 104 of the Transfer of Property Act were construed as enlarging the powers thus conferred upon the High Court, so as to make it competent for the High Court to substitute its own rules for those contained in the Civil Procedure Code, or to make rules which are inconsistent with the provisions of the Civil Procedure Code, Section 104 of the Transfer of Property Act will be ultra vires of the Indian Legislature; for under Section 22 of the Indian Councils Act (24 & 25 Vict., cap. 67) if is beyond the power of the Governor-General in Council to make any law affecting the provisions of any Act passed in the same session of Parliament, and the Indian High Courts Act (24 & 25 Vict., cap. 104) was passed in the same session as the Indian Councils Act (24 & 25 Vict., cap. 67). Section 9 of the Charter Act, no doubt, subjects all powers and authority for and in relation to the administration of justice, which may be conferred upon the High Courts by Her Majesty's Letters Patent, to the control of the legislative authority of the Governor-General of India in Council. But the power to make rules for regulating the practice and proceedings of the Subordinate Courts is not conferred upon the High Court by Letters Patent, but by Section 15 of the Charter Act itself, and such power therefore can in no way be affected by the Indian Legislature, On this point I may refer to the decision of the Calcutta High Court in Queen v. Meares 14 B.L.R. 106 and in particular to the following extract therefrom (at page 112)--'After consideration of this question, I think that the meaning of the words, 'any provisions of any Act passed in the present session of Parliament or hereafter to be passed,' is provisions in the Act itself. For instance, there is the qualification of the Judges of the High Court. The Governor-General in Council has not power to make an alteration in that. There is an express provision of the Act upon the subject. So also in Section 15 there is a provision giving to the High Court superintendence over the Courts which are subject to its appellate jurisdiction. That again is a provision in the Act which cannot be affected or altered by the Governor-General in Council. But I am of opinion that the words 'provisions in the Act' do not apply to what is not in the Act itself, but only in the Letters Patent which the Act authorises to be issued, and which can only be said to be a provision of the Act' by relation--by what is rather a forced construction, namely, that as the section says that the Courts shall have all the jurisdiction which shall be given by the Letters Patent, whatever is given by them becomes fixed, and is in the same state as if the words in the Letters Patent had been in the Act itself. I think that was not the intention of the Legislature and what has occurred subsequently confirms me in that opinion.' Section 15 of the Charter Act also empowers each of the High Courts to prescribe forms for every proceedings in the Subordinate Courts for which it shall think necessary that a form be provided; and the proviso that they shall not be inconsistent With the provisions of any law in force is equally applicable to them. But Section 644, Civil Procedure Code, subjects the forms set forth in the fourth schedule thereto to the power conferred on the High Court by Section 15 of the Charter Act.

16. Section 104 of the Transfer of Property Act does not, in my opinion, primarily contemplate the making of rules for the execution of decrees passed under chapter IV of the Act, such rules being already provided for by chapter XIX of the Civil Procedure Code, supplemented as they are by Sections 87, 89 and 93 of the Transfer of Property Act, What the section contemplates is the making of rules for 'carrying out the provisions' in the chapter. Section 85 provides that all persons having an interest in the property comprised in the mortgage must be joined as parties to any suit relating to such mortgage. But the sections relating to foreclosure, sale and redemption do not provide for successive redemptions and foreclosures and for the adjudication and enforcement of the rights of puisne mortgagees and of other persons having an interest in the property comprised in the mortgage who are joined as parties to the suit. No inconsiderable number of mortgages on which suits are brought are really 'anomalous mortgages' and adequate provision is not made in the chapter for dealing with such suits and for working out the rights and liabilities flowing therefrom. The rule-making power conferred on the High Court by Section 104 is, in my opinion, principally intended to regulate the procedure to be adopted for carrying out these and similar provisions contained in the chapter. The wording of Section 104, however, is sufficiently wide to authorize also the marking of rules for more effectually enforcing decrees that may be passed under the chapter; but such rules may supplement the provisions of chapter XIX, Civil Procedure Code, provided they are non inconsistent with them, but cannot supersede them.

17. With all deference I am unable to concur in the Full Bench decision of the Calcutta High Court in Kedar Nath Raut v. Kali Churn Ram I.L.R. 25 Calc. 703 in which it was held that Section 310-A, Civil Procedure Code, was not applicable to a sale of mortgaged property in execution of a decree ordering sale thereof. In that decision the learned Chief Justice goes so far as even to doubt whether a rule under Section 104 of the Transfer of Property Act extending Section 310-A, Civil Procedure Code, to such a sale would not be invalid as being inconsistent with the Transfer of Property Act. The whole reasoning proceeds upon the assumption that Section 104 would not have been introduced into the Act, if the provisions of the Civil Procedure Code for the execution of decrees were applicable to sales of mortgaged property in execution of decrees passed under the Transfer of Property Act. The High Court of Calcutta appears to have framed rules simply extending specified sections of chapter XIX, Civil Procedure Code to sales of mortgaged property. At the time when such rules were framed, Section 310-A had not been enacted. If it had been provided by Section 104 of the Transfer of Property Act, that it would be competent for a High Court to extend all or any of the sections of chapter XIX of the Civil Procedure Code to sales of mortgaged property, that might, by implication, amount to a legislative declaration that chapter XIX in itself was not applicable to such sales. But that is not how Section 104 is framed. What the High Court of Calcutta has done is not to make rules but to extend specified sections of the Code of Civil Procedure to them. The argument that the application of Section 310-A, Civil Procedure Code, to the setting aside of a sale of mortgaged property is really to extend the time for redemption and thus to violate the provisions of the Transfer of Property Act is far from conclusive. When an order for sale is passed under Section 89 of the Transfer of Property Act,--and a sale could take place only after such order--the right of redemption and the security are both extinguished, and the property is sold unincumbered by the mortgage, like any other property of the judgment-debtor which has not been mortgaged as security for the decree debt. The judgment-debtor, therefore, by being allowed the statutory benefit of Section 310-A is not allowed to redeem the property from the mortgage, but, as in the case of a sale of any of his other properties not comprised in the mortgage, to rescind the sale and that only on condition of paying compensation for such rescission to the auction purchaser, viz., 5 per cent. of the purchase money.

18. The application of Section 310-A to such a sale--ordered under chapter IV of the Transfer of Property Act but conducted and carried out under chapter XIX, Civil Procedure Code--can no more be regarded as extending the time for redemption of a mortgage than the application of Section 291, Civil Procedure Code, under which any sale ordered under Section 89 of the Transfer of Property Act may be adjourned from time to time and in fact stopped, if before the lot is knocked down the mortgage debt and costs are paid into Court. The question as to whether Sections 310-A, 291 or other similar sections in the Code of Civil Procedure are, or are not, consistent with the provision? of the Transfer of Property Act will be material only if it is proposed to make rules under Section 104 of the Transfer of Property Act embodying the provisions of those sections of the Civil Procedure Code on the assumption that those sections in themselves are, by virtue of Section 104 of the Transfer of Property Act, rendered inapplicable to sales in execution of mortgage decrees passed under chapter IV of the Transfer of Property Act. But in the view that those sections are in themselves applicable to such sales and that Section 104 of the Transfer of Property Act does not render them inapplicable, the question as to their being consistent or otherwise with the provisions of the Transfer of Property Act is immaterial. If in any particular there be a real inconsistency between the provisions of the Transfer of Property Act--which was passed on the 17th February, and came into force on the 1st July 1882--and of the Civil Procedure Code--which was passed later on the 17th March, but came into force earlier on the 1st June 1882--it may admit of some doubt as to which should prevail. That, in passing the Transfer of Property Act, it was the policy of the Legislature that the Act is not to operate as repealing by implication the provisions of any enactment, is expressly declared in Section 2 (a), and so far as Section 310-A is concerned--which was enacted only in 1894--there can be no manner of doubt that that must take effect even if it be inconsistent with the provisions of the Transfer of Property Act.

19. The reasoning on which the above Full Bench decision of the Calcutta High Court is based, if not its authority, is very much shaken by the decision of a Division Bench of the same Court in Dakshina Mohan Roy v. Srimati Basumati Debi 4 W.N.474

20. It has been held by this Court as well as by the High Courts of Bombay and Allahabad that Section 310-A is applicable to sales of mortgaged property in execution of mortgage decrees Tirumal Rao v. Syed Dastaghiri Miyah I.L.R. 22 Mad. 286 Krishnaji v. Mahadev Vinayak I.L.R. 25 Bom. 104 and Raja Ram Singhji v. Chunni Lal I.L.R. 19 All. 205. Several decisions Birj Mohun Thakoor v. Rai Uma Nath Chowdhry I.L.R. 20 Calc. 8. and Mahomed Meera Ravuthar v. Savvasi Vijaya Raghunadha, Gopalar L.R. 27 IndAp 17 : I.L.R. 23 Mad. 227 have proceeded upon the assumption that Section 311 is applicable as well to sales of mortgaged property as to sales in execution of simple money decrees. I see no reason whatever to- depart from these decisions and to adopt the view taken by the Full Bench of the Calcutta High Court.

21. As regards the reference made in Appeal against Order No. 156-of 1900, I am clearly of opinion that an appeal does lie from an order refusing to make an order absolute in pursuance of a decree for sale passed under Section 88 of the Transfer of Property Act. A decree passed under Section 88 of. the Transfer of Property Act, either under paragraph 1 or paragraph 2 thereof, fulfils in every respect the first part of the definition of 'decree' as given in the Civil Procedure Code, viz., 'decree means the formal expression of an adjudication upon any right claimed or defence set up in a Civil Court, when such adjudication, so far as regards the Court expressing it, decides the suit or appeal.' This corresponds to. what--unless there is something to show an intention to use the words in a more extended sense--in law is regarded, in its strict and proper meaning, as a 'final judgment,' that is, 'a judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or established, (per Cotton, L.J., in Ex parte Chinery L.R. 12 Q.B.D. 342. In the same case Bowen, L.J., in expressing his concurrence with Cotton, L.J., observed as follows: 'I think that a garnishee order absolute is not a 'final judgment.' There is an inherent distinction between orders' and 'judgments.' It is true that certain Acts of Parliament have given to 'orders' the effect of 'judgments,' but the distinction between them remains. The words 'final judgment' having, then, a proper professional meaning, when they are found in a section of an Act of Parliament defining acts of bankruptcy, they should be as strictly construed as if they occurred in a section which was defining a misdemeanour, because the commission of an act of bankruptcy entails disabilities on the person who commits it' vide also Smith v. Davies 31 Ch. D. 595.

22. The Civil Procedure Code contemplates but one 'decree' in a suit, in the above sense, and it nowhere contemplates the passing of a 'preliminary decree' as distinguished from a 'final decree' or of a 'decree nisi' as distinguished from a 'decree absolute' (vide Sections 213, 215, 215-A, 265 and 396). Sections 213, 215 and 215-A empower the Court, 'before making its decree' in the classes of suits therein referred to, to order that accounts be taken. In the case of a suit for the partition of an estate paying revenue to Government, the Court passes but one decree and that is a decree directing the partition. It is then transferred to the Collector for making the partition according to the law, if any, regulating such partition (Section 265). No further decree is passed by the Court. In the case of a suit for partition of immoveable property not paying revenue to Government there is to be also but one decree but, before making that decree, the Court may appoint a commissioner to submit a schema for effecting the partition (Section 396). There is, in the section, no reference made to a preliminary decree. All that the section enjoins is that the Court 'after ascertaining the several parties interested in' the property, of which a partition is sought and their several rights therein, may issue a commission' &c.;

23. The second part of the definition of 'decree' in the Civil Procedure Code enlarges the first part of the definition by including therein 'an order rejecting a plaint, or directing accounts to be taken, or determining any question mentioned or referred to in Section 244, but not specified in Section 588.' But for this enlargement of the definition of 'decree' the right of first and second appeals would, under Sections 540 and 584, Civil Procedure Code, be restricted only to 'final adjudication' of a suit corresponding to a final judgment' in its strict and proper sense as explained in Ex parte Chinery 12 Q.B.D. 342 already quoted. The effect of the enlargement is to extend such right of first and second appeals to 'orders directing accounts to be taken' prior to final adjudication and to all orders subsequent to adjudication, which orders are passed under Section 244, Civil Procedure Code, to give effect to or carry out the adjudication. An order rejecting a plaint is also thus made subject to a first and second appeal.

24. The scheme of the Civil Procedure Code is clear, namely, that there is to be only one decree in the suit, corresponding to the first part of the definition, and that all 'orders' subsequent thereto, relating to the execution of such decree, determining any question mentioned or referred to in Section 244 are also to be treated as 'decrees' for purposes of appeal, as also orders rejecting a plaint or directing accounts to be taken in the course of a suit. The adjudication of the suit in the sense of 'final judgment' therein is reached when the 'decree' according to the first part of the definition is passed; but the suit terminates only when such 'decree' is fully effectuated and all proceedings in execution thereof are 'proceedings in suits' (vide explanation to Section 647, Civil Procedure Code) and until the final judgment (decree) is satisfied the cause is still pending Salt v. Cooper 16 Ch.D. 544 and the action is not dead Collinson v. Jeffery [1896] 1 Ch. 644.

25. As regards Form No. 129 in the fourth schedule to the Civil Procedure Code, which is headed 'final decree for foreclosure' and which by Section 87 of the Transfer of Property Act was amended by substituting 'decree absolute' for 'final decree' I may mention that in the body of the form reference is made to 'the order made in this suit on the day of last and the period of six months has elapsed since the said day of last. It will thus be seen that the form is not technically accurate; what is referred to as 'order' in the body of the form is technically and in reality a 'decree' passed under and referred to as such in Section 86 of the Transfer of Property Act. I may add that, according to the English law and practice, the heading of the form ought to be 'order absolute for foreclosure' and not 'final decree for foreclosure.' I fully concur in the following criticism of this amendment by Macpherson in his 'Law of Mortgage in India' [7th edition, page 695, note (4)]--'The amendment of the heading of Form No. 129 of Schedule IV of the Civil Procedure Code made by this paragraph seems hardly correct. This Act nowhere refers to a 'decree absolute,' though the second paragraph of this section provides for the passing by the Court of an order that the defendant be debarred absolutely of all right to redeem the property. If any amendment of the heading of the form appended to the Code was necessary, it should, it is submitted, have substituted the words 'order absolute' for 'decree final.' In England also it may be observed, a foreclosure is made 'final,' i.e., absolute, by an order, not by a decree (Seton on 'Decrees,' 4th edition, page 1089).' Dr. Ghose in his Tagore Law Lectures on the 'Law of Mortgages in India' (3rd edition at page 893) in noticing this amendment of the heading of Form No. 129, Civil Procedure Code, observes: 'It may be noticed that the amendment in the last paragraph (of Section 87) is not very felicitous. The term 'decree absolute' should strictly be order absolute'; as foreclosure is made final by an 'order' and not by a 'decree.' '

26. Forms, and much less the headings of forms, cannot control the construction of the Act and an amendment of the heading of a form by an Act will really carry no greater weight. This amendment is all the more surprising as in the earlier editions of the Bill which was finally passed into the Transfer of Property Act, the alteration proposed was to substitute 'order absolute for the words 'final decree.' I may add that in the body of the form the word 'decree' should have been substituted for 'order.' That, in respect of decrees to be passed in mortgage suits under the Transfer of Property Act, the Legislature did not wish to depart from the scheme of the Civil Procedure Code is made abundantly clear by the circumstance that, though in the first edition of the Transfer of Property Bill, Section 19 provided for the passing, in a foreclosure suit, of a 'preliminary decree' corresponding to the 'decree for foreclosure' in Section 86 of the Act and thereafter of a 'decree for the foreclosure of the mortgage' corresponding to the order absolute for foreclosure' in Section 87 of the Act, yet in the subsequent editions of the Bill 'decree' was substituted for 'preliminary decree' and 'order absolute for foreclosure' for 'decree for foreclosure.' And thus Sections 86 and 87 of the Transfer of Property Act, as they now stand, are in accordance both with the scheme of the Civil Procedure Code and with the English Chancery law and practice. Similarly in regard to suits for redemption, Section 25 of the first edition of the Bill provided for the passing of a 'preliminary decree' corresponding to Section 92 of the Act, and, in accordance with the English Chancery law and practice, 'for the suit standing dismissed and the plaintiff being foreclosed of all right to redeem' (corresponding to Section 93 of the Act) in default of payment, within the time fixed, of the amount found due. In the subsequent editions of the Bill the provision for the dismissal of the suit in default of payment within the time fixed was dropped, that for the passing of an order absolutely debarring the plaintiff of all right to redeem being alone retained. So far as Section 88 is concerned, in which the decree is for sale of the property mortgaged, whether the same be passed in a suit for sale, or in lieu of foreclosure in a suit for foreclosure, the matter is free from any difficulty, and whatever doubt there may possibly be as to the nature and scope of an order absolute for foreclosure under Sections 87 and 93, none such exists in regard to an order absolute for sale under Section 89, which is the matter immediately under reference. Form No. 128 (fourth schedule, Civil Procedure Code) is the form of a decree for sale as prescribed by Section 88 of the Transfer of Property Act, and there is no form given for an 'order absolute for sale' corresponding to the so-called 'decree absolute for foreclosure' (Form No. 129). The English form corresponding to Form No. 128, Civil Procedure Code, is Form No. 12 (Sale in Default of Payment) in Seton on 'Judgments and Orders' (5th edition) on page 1587. In Seton, as in the Civil Procedure Code, there is no distinct form for an 'order absolute' for sale. In the form in Seton, liberty is reserved to apply at Chambers, for directions to effect the sale (vide Annual Practice for 1902, volume I , page 764, Order 55, Rule 2, Clause 14).

27. Under the Transfer of Property Act, an order for sale is obtained under Section 89, in default of payment by the mortgagor of the decree amount within the time specified in the decree; on the passing of such order, the security as well as the mortgagor's right to redeem are both extinguished and the sale is conducted under the provisions of the Civil Procedure Code as in the case of a simple money decree, in execution of which the property ordered to be sold had been attached, and the 'security' of the decree-holder as mortgagee of the property is preserved by the decree by giving him against the sale-proceeds, 'the same right as he had against' the property sold. Mr. Macpherson, in commenting upon the effect of the mortgagor's right to redeem as well as the security being extinguished by the passing of an order absolute for sale, explains it as follows, and I fully concur in the same--(Macpherson --'Law of Mortgage in British India'--7th edition, pages 697-98): 'As on the passing of an order absolute for sale, the defendant's right to redeem and the security are extinguished, it is clear that the defendant cannot redeem the mortgage after the passing of such an order. And if the effect of this were that the defendant could not pay off the amount due after an order for sale had been passed, this provision would be most inequitable, for it would amount to this, that a mortgagor who was willing to pay the amount of his debt would be absolutely prohibited from doing so and that a Court would be compelled to sell a property in order that a mortgagee might receive payment of that which the mortgagor was before, and at the time of the sale, perfectly ready and willing to pay him. It is submitted, however, that, though the effect of the provision no doubt is to extinguish the mortgagor's right to redeem, he still has the same right as any other judgment-debtor has, to pay off the amount of his debt at any time before actual execution, that is, before the property is sold. In other words, though be may not, after the passing of an order absolute for sale, pay the money as a mortgagor, he may do so as a judgment-debtor. There seems to be nothing in this view which is inconsistent with the section, and, as it favours equity it is one which, it is submitted, may well be adopted. Further, as on the passing of an order absolute for sale, the security is extinguished, the mortgagee's interest in the property must then also come to an end. The effect of this must, it is submitted, be that the entire ownership of the property reverts to the mortgagor, for after the mortgagee's interest in the property is extinguished there is nothing to limit the full ownership which is vested in the mortgagor. In the event, therefore, of the mortgagor paying off his debt after such an order as above suggested, no retransfer of the property by the judgment-creditor to the judgment-debtor would appear to be necessary, inasmuch as the full ownership of the property reverted to the judgment-debtor when the order absolute for sale was made.'

28. The absence of a provision in Section 89 corresponding to the proviso to Sections 87 and 93, empowering the Court to postpone 10 Mad.-36 from time to time the day fixed in the decree for payment of the mortgage money, is because the mortgagor under the provisions of the Civil Procedure Code is given liberty to arrest the sale by payment before the lot is knocked down, and there is no need for a reconveyance by the mortgagee, inasmuch as, on the passing of an order absolute for sale under Section 89, the mortgage security was extinguished and the ownership reverted to the mortgagor by operation of law. Though the absence of a proviso to Section 89, empowering the Court to postpone the day appointed in the decree for payment of the amount will not really prejudice the mortgagor --the judgment-debtor--if the mortgagee should obtain an order absolute for sale, yet if the mortgagee, as he might in some oases, does not choose to do so, the mortgagor will be unable, so far at any rate as the Transfer of Property Act goes, to obtain reconveyance of the property by exercising his right of redemption on payment after the day appointed. It would, therefore, have been better if the proviso for postponing such day, which finds a place in Sections 87 and 93, had also been added to Section 89.

29. If the decree for sale passed under Section 88 of the Transfer of Property Act has only to be executed under the provisions of chapter XIX of Civil Procedure Code, Section 89 of the Transfer of Property Act, might at first sight seem superfluous. Without saying that Section 89 is absolutely necessary in the sense that, but for it, decrees passed under Section 88 could not be executed-- for mortgage decrees passed prior to the Transfer of Property Act were being executed under the provisions of the Civil Procedure' Code - Section 89 serves two purposes. Under the Civil Procedure. Code it is only property that had been attached that could be ordered by the Court to be sold (vide Section 284). Hence it was that, prior to the passing of the Transfer of Property Act, and in this Presidency even for some years after it, mortgage decrees used to be executed by first attaching the mortgaged property referred to in the decree and then obtaining under Section 284, Civil Procedure Code, an order for sale, the result of which was that claims to the mortgaged property preferred by strangers used to be. entertained and summarily adjudicated upon under the claim-sections of the Civil Procedure Code. This defect in the Civil Procedure Code, by reason of which a difficulty might be raised that an order for sale of the mortgaged property which had not been attached could not be obtained under its provisions, was remedied by Section 89 of the Transfer of Property Act. Another important purpose served by Section 89 is to extinguish the security and the correlative right of redemption, so that the decree may be executed as a money decree in respect of the mortgaged property ordered to be sold, and the property be sold as if the mortgagor--the judgment-debtor--were the owner thereof, unincambered by the mortgage in question, thus obviating the necessity for extention of the time fixed for payment under Section 88 as in the case of decrees for foreclosure or redemption.

30. In my view, Section 89 operates as a provision supplemental to chapter XIX of the Civil Procedure Code, so that a mortgage decree passed under Section 88 of the Transfer of Property Act may be executed on a scientific basis, and the application to the Court for an order absolute for sale is nothing but an application under Section 235, Civil Procedure Code, to work out in execution proceedings Sri Rajah Papamma Rao Bahadur v. Sri Vira Pratapa, Korkonada I.L.R. 19 Mad. 249 Maharajah of Bharatpur v. Ram Ranno Dei I.L.R. 23 All. 181 Harendra Lal Roy Chowdhry v. Maharani Dasi I.L.R. 28 Calc. 557 the decree passed under Section 88 of the Transfer of Property Act. In all these three cases the Judicial Committee of the Privy Council refer to the enforcement of the conditional directions contained in the decree passed under Section 88 of the Transfer of Property Act as 'execution' of the same, and in the last of them, the order absolute passed by the original Court under Section 89 is referred to by the Judicial Committee as the granting of execution of the decree to the full amount. Section 89 is silent as to the contents of the application, whether it should be verified or not, and notice thereof given or not to the judgment-debtor, because these matters are fully provided for by Sections 235 and 248, Civil Procedure Code. A reference to the particulars given by Section 235 will show that an application for an order absolute for sale under Section 89 of the Transfer of Property Act must contain all such particulars. Particular 'j' after specifying certain reliefs which may be applied for, concludes 'or otherwise as the nature of the relief sought may require.' In the case of a mortgage decree as such under Section 88 none of the reliefs specifically mentioned in 'j' can be applied for, and the 'other' relief to be applied for will be an order absolute for sale of the mortgaged property. Whether or not notice of this application is to be given to the judgment-debtor or his legal representative will depend on the provisions of Section 248, Civil Procedure Code Tarapada Ghose v. Kamini Dassi 6 W.N. 28. The order of the Court under Section 89 should be to sell either the whole of the mortgaged property, or only a sufficient portion thereof specifying such portion in the order. Under Section 286 the sale will have to be conducted by an officer of the Court and made by public auction. As soon as the order for sale is passed, the duty devolves upon the Court to issue and publish a proclamation of the intended sale under Section 287, Civil Procedure Code, and the sale will have to be conducted and completed in the manner provided by the subsequent sections, a warrant of sale being issued to an officer of the Court in the form prescribed by Form No. 145 of the fourth schedule to the Civil Procedure Code.

31. That an application under Section 89 of the Transfer of Property Act for an order absolute for sale is only an application for 'leave to issue execution', is also in conformity with the execution chapter containing the rules framed under the Judicature Act under Order No. 42. Rule 9 runs as follows: 'Where a judgment or order is to the effect that any party is entitled to any relief subject to or upon the fulfilment of any condition or contingency, the party so entitled may, upon the fulfilment of such condition or contingency, and demand made upon the party against whom he is entitled to relief, apply to the Court or a Judge for leave to issue execution against such party. And the Court or Judge may, if satisfied that the right to relief has arisen according to the terms of the judgment or order, order that execution issue accordingly, or may direct that any issue or question necessary for the determination of the rights of the parties be tried in any of the ways in which questions arising in an action may be tried.' (Annual Practice, 1902, volume I, page 571.) The judgment or decree passed under Section 88 of the Transfer of Property Act, in so far as it orders sale of the mortgaged property in default of payment within the time fixed in the decree, is a judgment subject to a condition or contingency as defined in the above rule, and an application to enforce the judgment (vide Section 230, Civil Procedure Code) by ordering the sale of the mortgaged property on the ground that the condition or contingency has happend is nothing but an application for leave to issue execution against the mortgagor--the judgment-debtor--as provided in the above rule, and the applicant affords proof that the condition or contingency has happened, entitling him absolutely to an order for sale, by verifying his petition which is presented under Sections 89 of the Transfer of Property Act, and 235, Civil Procedure Code.

32. Under Section 223, Civil Procedure Code, a decree passed under Section 88 of the Transfer of Property Act may be sent for execution, under the provisions therein contained, to some other Court and, in my opinion, it may be so sent either before or after the order for sale is passed under Section 89. In the latter case, such order should, under Section 224 (c), Civil Procedure Code, accompany a copy of the decree sent for execution; in the former case the Court to which the decree is sent for execution has, under section '228, the same powers in executing such decree as if it had been passed by itself and its orders in executing such decree are subject to the same rules in respect of appeals, as if the decree had been passed by itself. If the Court, to which a decree passed under Section 88 of the Transfer of Property Act is sent for execution, is by fiction of law to be deemed the Court which passed the decree itself, the order for sale under Section 89 can of course be passed by that Court itself and need not be passed by the Court which in fact passed the decree, either as a Court of First Instance or as an Appellate Court.

33. That Section 89 of the Transfer of Property Act does not contemplate the passing of a 'decree absolute' by making absolute the decree which was passed only conditionally under Section 88, is placed beyond all doubt by the fact that the conditional decree in favour of the defendant--the mortgagor--against the plaintiff--the mortgagee--is not required to be made absolute by an application to be made by the defendant--the mortgagor--under Section 89. In every decree passed under Section 88, the defendant on payment, on or before the date fixed in the decree, of the amount found due and declared, is entitled to a recovery from the plaintiff of all documents relating to the mortgaged property, to a reconveyance of the property and, if necessary, to be put into possession of it. The defendant on fulfilling the condition of payment is of course entitled to the above reliefs by executing the decree, and, if so, why is Section 89 of the Transfer of Property Act entirely silent about any order absolute, at the instance of the defendant, for all or any of these reliefs? The reason is that the sections of the Civil Procedure Code relating to the enforcement of decrees for delivery of chattels or of immoveable property or for the execution of conveyances are ample in themselves and may be carried out without the aid of a supplemental provision in Section 89 of the Transfer of Property Act, as in the case of an order for sale of mortgaged property. I have already suggested the probable reason for this supplemental provision in Section 89 of the Transfer of Property Act in regard to an order for sale of mortgaged property. Be this as it may, the scope and object of Section 89 is not to convert a 'decree nisi' passed under Section 88 into a 'decree absolute,' or a 'preliminary decree' into a 'final decree.' If that were the object, it is inconceivable that it would be carried out only so far as the decree nisi or preliminary decree is in favour of the plaintiff and not in so far as it is in favour of the defendant and every decree under Section 88 is necessarily of this dual nature. The decree passed under Section 88 is the only and the final decree in the suit and Section 89 is only a supplemental provision for the effectual execution on a scientific basis, of such decree, in so far as it is in favour of the plaintiff, no such supplemental provision being considered necessary for the execution of the decree in so far as it is in favour of the defendant.

34. That the framer of the Transfer of Property Act steadily and distinctly kept in view the difference between a 'decree' and an 'order,' though such order may have the force of a decree, i.e., the difference between 'decree' according to the first part of its definition in the Civil Procedure Code and 'decree' according to the second part of the definition, is significantly brought out by Section 90 of the Transfer of Property Act immediately following Section 89. That section provides for the Court passing a decree (not an 'order') against the judgment-debtor, for the recovery of the balance of the mortgage debt remaining due after payment to the mortgagee of the net proceeds of the sale of the mortgaged property. Such decree will have to be executed under the provisions of the Civil Procedure Code as a simple decree for money, and the object of the section is to obviate the necessity of the mortgagee having to bring a fresh suit on payment of the institution fees--and that, in most cases, parobably in a Court different from that which passed the mortgage decree or is executing it --to recover the balance of the debt from the mortgagor, on his covenant to pay. If, in the original suit itself, the mortgagee bad included a personal claim against the mortgagor for payment of the mortgage debt and obtained a decree for payment of the debt 'personally' Dymond v. Croft 3 Ch. D. 512 Farrer v. Lacy Hartland & Co. L.R. 25 Ch.D. 636 per North, J.; Bissett v. Jones 32 Ch.D. 635 Fisher on 'Mortgages,' 5th edition, paragraphs 806 and 990 and also a decree under Section 88 of the Transfer of Property Act for sale of the mortgaged property, there would be no necessity for his applying under Section 90 for a fresh decree after the proceeds of the sale of the mortgaged property have proved insufficient to satisfy the debt. But there may be cases in which, with reference to the provisions of Sections 16 and 17, Civil Procedure Code, the mortgagee would be unable to include both claims in one and the same suit, by reason of the cause of action not having arisen or the defendant not residing within the territorial jurisdiction of the Court having jurisdiction over the mortgaged property. In such a case, under the ordinary law, he will have to bring a separate suit in the Court within whose jurisdiction the cause of action on the covenant to pay has arisen or the mortgagor is residing, for enforcing his claim against the mortgagor personally, and that only if, under Section 43, Civil Procedure Code, ha obtained the leave of the Court in which the first suit was instituted, to reserve his personal remedy against the mortgagor. Section 90 of the Transfer of Property Act substitutes an application for a separate suit and thus enables the mortgagee to steer clear of the processual difficulties arising under Sections 17 and 43, Civil Procedure Code, and obtain, on application made to the Court executing the mortgage decree, a personal decree for payment of the balance due. Such application should, however, be regarded as an application for execution of the mortgage decree and therefore governed by the law of limitation applicable to the execution of the mortgage decree. But the application would be infruotuous under Section 90 of the Transfer of Property Act unless the mortgagee's personal remedy against the mortgagor is also not barred by the general law of limitation. The decree under Section 90 being virtually a decree in a suit in the form of an application--which application is made in pursuance of a prayer in the plaint [vide Form No. 109, paragraph 3 (c), fourth schedule to the Civil Procedure Code] --its execution will be governed by Article 179 of the Indian Limitation Act and the mortgagee will have to make a separate application under Section 235, Civil Procedure Code, for execution of this fresh or supplemental decree.

35. With all deference, I am compelled to dissent from the view taken by the Calcutta High Court in more cases than one Ajudhia Pershad v. Baldeo Singh I.L.R. 21 Calc. 818 and Tara Prosad Roy v. Bhobodeb Roy I.L.R. 22 Calc. 931 that an application for an order absolute for sale under Section 89 of the Transfer of Property Act is not an application for the execution of the decree passed under Section 88, that there is no period of limitation prescribed for such application, that the decree passed under Section 88 is only a preliminary decree or a decree nisi, and that the order passed under Section 89 is a final decree or decree absolute. I entirely agree with the decisions of the Bombay and Allahabad High Courts that an application under Section 89 is an application for execution of the decree passed under Section 88, that it is governed by Article 179 of the Limitation Act and that an order thereon is appealable as an order passed under Section 244 (c), Civil Procedure Code Oudh Behari Lal v. Nageshar Lal I.L.R. 13 All. 278 Chunni Lal v. Harnam Das I.L.R. 20 All. 302 Bhagawan v. Ganu I.L.R. 23 Bom. 644. In Bhagawan v. Ganu I.L.R. 23 Bom. 644 Parsons, J (Acting Chief Justice) forcibly observes as follows--and I fully adopt his observations. Referring to an application made under Section 89 of the Transfer of Property Act he observed: 'If the Subordinate Judge had avoided technicalities and treated it as what it really is, namely, an application to the Court for an order for the sale of mortgaged property, all his difficulties would have disappeared. There is no particular magic in the word 'absolute' and it is not necessary that the application for the order should state the Act or the section thereof under which it is made. '

36. I do not think it necessary to refer to the arguments addressed by way of analogy on Sections 86, 87, 92 and 93 of the Transfer of Property Act, and to the various decisions that were cited bearing upon decrees and orders passed under those sections. In the view I take of the matter, I regard the provisions made in paragraphs 1, 2, and 3 of Section 87 as provisions for enforcing or executing the decree for foreclosure passed under Section 86 and the provisions in paragraphs 1, 2, 3, 4 and 6 of Section 93 as provisions for enforcing the decree for redemption passed under Section 92 of the Transfer of Property Act. But it is unnecessary to elaborate my view in regard to these decisions with reference to the English Chancery practice, and decisions, English and Indian, or express any decided opinion--especially as a reference has recently been made to a Full Bench for a reconsideration of certain decisions of this Court, which were strongly relied upon, in which it has been held that, notwithstanding that a decree for redemption of a mortgage has been passed, yet subsequent suits for redemption of the same mortgage could be maintained, if no order absolute for foreclosure had been passed in the meanwhile. I may, however, mention that I entirely dissent from more than one decision of this Court Vallbha Valiya Rajah v. Vedapuratti I.L.R. 19 Mad. 40 Narayana Reddi v. Papayya I.L.R. 22 Mad. 133 Elayadath v. Krishna I.L.R. 13 Mad. 267 in which it is assumed and held that the time fixed for payment in a decree for foreclosure or for redemption cannot be postponed under the proviso to Section 87 or 93 of the Act on the application of the mortgagor, unless he makes such application in answer to an application by the mortgagee for an order absolute for foreclosure, which application by the mortgagee can necessarily be made only after the expiration of the time fixed for such payment. The proviso contemplates 'postponement' of such day and I am clearly of opinion that the mortgagor can apply, and should ordinarily apply, for postponement, before the mortgagee applies for an order absolute for foreclosure after the expiration of the time so appointed, though according to decisions both in England and here the time, appointed may also be retrospectively postponed and extended even on an application made after the day appointed. Every such order of postponement is pro tanto within the meaning of Section 244 (c) Civil Procedure Code, an order relating to the stay of execution of the decree Hulas Rai v. Pirthi Singhi I.L.R. 9 All. 502 note; Rahima v. Nepal Rai I.L.R. 14 All. 520. Until the mortgagee obtains an order absolute for foreclosure the action will be pending, though final judgment has been given, and it will be competent to the Court executing the decree on application made by the mortgagor, for good and sufficient cause, to extend the time for payment, whether such application be made before or after the day appointed for payment. And with all deference I dissent from the view taken by the High Court of Calcutta in more cases than one Poresh Nath Mojumdar v. Ramjodu Mojuumdar I.L.R. 16 Calc. 246 Ajudhia Pershad v. Baldeo Singh I.L.R. 21 Calc. 818 that the mortgagor can, even after the expiration of the time limited for redemption by the decree, redeem the mortgage on payment of the amount, without obtaining an extension of such time, so long as the mortgagee has obtained no order absolute for foreclosure. The question as to whether, in the absence of an order absolute for foreclosure, a fresh suit for redemption could be brought, is altogether a different one, the solution of which depends upon the scope and operation of the principle of res judicata and of Section 244, Civil Procedure Code. I am unable to see how any party seeking to enforce or execute a decree for redemption can claim to do so without complying with the conditions imposed by the decree, as conditions precedent for redemption. It is to mitigate the hardship that may be caused to the mortgagor by non-payment of the amount on or before the day fixed in the decree, that provision is made by Sections 87 and 93 of the Transfer of Property Act, empowering the Court executing the decree to extend the time fixed for payment.

37. The whole difficulty which has led to numerous conflicting decisions of the various High Courts in working chapter IV of the Transfer of Property Act (vide preface to the 3rd edition of the 'Law of Mortgage in India' by Bash Behary Ghose) is chiefly due to the fact that a number of sections which ought really to find a place in the Civil Procedure Code have been incorporated with the Transfer of Property Act. As in the case of sales and leases, the chapter relating to mortgages in the Transfer of Property Act should simply define the different kinds of mortgages and the rights and liabilities of mortgagors and mortgagees of the different classes. The sections relating to the contents of decrees, to the manner of providing therein for various remedies of the mortgagor and the mortgagee and to the enforcement of such remedies in execution proceedings, should be entirely eliminated from a Code defining the substantive law as to transfer of property by act of parties, and the words, 'save as provided by Section 57 of chapter IV of this Act' in Section 2 (d) of the Transfer of Property Act, deleted, and Section 104, dropped. These sections (83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 96, 97, 99, 102 and 103) should, in my opinion, be simplified and recast, certain defects therein being rectified, and with two or three additional sections providing for successive redemptions and foreclosures inserted in the new Civil Procedure Code under the heading of 'Decrees in foreclosure, sale and redemption suits', partly in chapter XVII relating to 'judgments and decrees' and partly in chapter XIX relating to the 'execution of decrees,' Sections 96 and 97 however being incorporated with Section 295 of the Civil Procedure Code.

38. In recasting Sections 86, 88 and 92 of the Transfer of Property Act, the direction as to the retransfer or reconveyance of the mortgaged property to the mortgagor by the mortgagee should, in my opinion, be restricted to 'English mortgages' and 'mortgages by conditional sale', the direction in the case of simple and usufructuary mortgages and charges being (as provided by Section 60 of the Transfer of Property Act) simply to execute (and, where the mortgage or charge has been effected by a registered instrument, to have registered) an acknowledgment in writing that any right in derogation of the mortgagor's interest, transferred to the mortgagee or created in favour of the charge-holder has been extinguished--a provision which was evidently intended to meet cases other than 'English mortgages' and 'mortgages by conditional sale', but apparently overlooked in the decretal Sections 86, 88 and 92. The direction in the decree as to the delivery, by the mortgagee to the mortgagor, of 'all documents in his possession or power relating to the mortgaged property' without specifying the same in the decree, and providing for the payment of a sum of money in respect of each such document (vide Section 208, Civil Procedure Code) or for the giving of an indemnity, as an alternative, if delivery cannot be had, is vague and indefinite and leads to complicated and vexatious proceedings in execution. In the case of a simple or usufructuary mortgage or a charge, there is nothing to be retransferred or reconveyed after the discharge of the debt, any more than there is in the case of a lease after the termination of the lease. But every mortgage decree now contains as a matter of form a direction for retransfer or reconveyance of the property, by the mortgagee or his assignee to the mortgagor, free from all incumbrances created by the mortgagee, or, in the case of his assignee, by those under whom such assignee claims, and in the vast majority of cases, this direction, which is simply unintelligible and puzzling to the parties concerned,--especially when they are furnished with a translation of the .same in the vernacular languages of the district--remains a dead letter.

Moore, J.

39. In Appeal against Appellate Order No. 35 of 1901 and Appeal against Order No. 48 of 1900.--There can, as it appears to ma, be no reasonable doubt that Section 311 of the Civil Procedure Code should be held to apply to sales which have taken place in execution of a mortgage decree. That section contains a broad general rule which must, I consider, be held to apply to all sales of immoveable property hold under the order of a Court. It is in no way inconsistent with any of the provisions of the Transfer of Property Act, If it wore to be held that this section did not apply to sales held under mortgage decrees, it would follow that even where it was shown that grave irregularities had occurred in connection with the sale which had caused gross injustice, the Court would be powerless to set matters right and redress the injury proved to have been inflicted. This cannot have been the intention of the Legislature.

40. The question as to whether Section 310-A of the Civil Procedure Code applies to sales under mortgage decrees is one of considerable difficulty as is shown by the conflicting views of the several High Courts regarding it, Madras Tiruml Rao v. Syed Dastaghiri Miyah I.L.R. 22 Mad. 286 Bombay Krishnaji v. Mahadev Vinayak I.L.R. 25 Bom. 104 and Allahabad Raja Ram Singhji v. Chunni Lal I.L.R. 19 All. 205 answering the question in the affirmative, while Calcutta Kedar Nath Raut v. Kali Churn Ram I.L.R. 25 Calc. 703 gives a negative response. At the conclusion of the arguments addressed to the Full Bench. I felt disposed to concur with the Calcutta High Court, mainly on the ground that the provisions of Section 310-A appeared to me to be inconsistent with Section 89 of the Transfer of Property Act. That section provides that, on an application being made to the Court for an order absolute for sale of the mortgaged property, the Court shall pass an order that such property be Bold and that the proceeds of the sale be dealt with as provided for in Section 88 and that, thereupon, the defendant's right to redeem and the security shall both be extinguished; to allow the person whose property has bean sold in accordance with this order to have the sale set aside subsequently, under Section 310-A of the Civil Procedure Code, appears to me to be inconsistent with the clear provisions of this section of the Transfer of Property Act. A perusal of the draft of the revised Civil Procedure Code and the statement of objects and reasons with the annexed notes on clauses appended thereto shows that the Government of India in the Legislative Department looks at the matter in the same light. In this draft Section 310-A is amended so as to make it apply to sales under mortgage decrees and it is provided that the following words shall be added to Section 89 of the Transfer of Property Act 'save in so far as is otherwise provided by Section 310-A of the Civil Procedure Code.' With reference to these alterations it is observed as follows in the notes on clauses--'Though Sections 291 and 310-A of the present Code are somewhat inconsistent with Section 89 of the Transfer of Property Act, it is considered desirable to enact that they apply to sales in the execution of decrees for the enforcement of mortgages.'

41. On thinking the matter over I am, however, somewhat doubtful as to whether there is really any greater inconsistency between Section 310-A of the Civil Procedure Code and Section 89, Transfer of Property Act, than there is between Sections 291 or 311 of the Civil Procedure Code and the Transfer of Property Act vide remarks of the Bombay High Court as to this, Krishnaji v. Mahadev Vinayak I.L.R. 25 Bom. 104. Sections 88 and 89 of the Transfer of Property Act provide that on the plaintiff (mortgagee) getting a decree for sale in case the defendant (mortgagor) does not pay the amount due within the prescribed time, the plaintiff (mortgagee) can apply to the Court for an order absolute for sale. The Court then passes an order for sale and directs that the proceeds of the sale shall be dealt with as mentioned in Section 88 and the section then provides that 'thereupon' the defendant's (mortgagor's) right to redeem shall be extinguished. 'Thereupon' means I believe 'on the order absolute for sale being passed' and not 'on the sale having been completed.' The sale takes place, the property is purchased by a third party, the sale-proceeds are applied under Section 88 and the mortgagee is completely paid off. A few days subsequently the mortgagor, being a person whose immoveable property has been sold, comes in under Section 310-A, makes the payments there required and gets the sale set aside and his land restored to him. All this is not, I think, really inconsistent with Section 89, Transfer of Property Act. The mortgagor has got back his property but the order absolute under which his right to redeem was extinguished is still in force. The arguments in Kedar Nath Raut v. Kali Churn Ram I.L.R. 28 Calc. 703 are mainly based on a consideration of the rules framed by that High Court under Section 104 of the Transfer of Property Act, but those arguments have little force in Madras as we have framed no rules under that section except for the Original Side of the High Court. I am for these reasons not disposed to disagree with the view taken by nay learned colleagues that the provisions of Section 310-A of the Civil Procedure Code do apply to sales under Section 89 of the Transfer of Property Act.

42. In Appeal against Order No. 156 of 1900,--The question referred for decision to the Full Bench is, 'Does an appeal lie against an order refusing to make an order absolute for sale upon an application made under Section 89 of the Transfer of Property Act?' The real point at issue is as to whether an application to make the abovementioned order is an application to the Court to make final the preliminary decree already passed under Section 88, or is an application for execution of a final decree already passed and capable of being executed. Whichever view be taken, it is clear that there is an appeal. If the application is one for execution an appeal lies under Section 244 of the Civil Procedure Code, while, if it be held that till an application for an order absolute for sale is granted or refused under Section 89 there is no decree capable of execution, it follows that such an order, whether under it the prayer is granted or refused, is a decree from which an appeal lies in the ordinary course. The question, however, as to whether an application under Section 89 for an order absolute for sale should be looked on as application for execution of a decree, or as one for such an order as will make a decree, which up till then has been unexecutable, capable of being executed, is one of great importance regarding which the several High Courts have arrived at widely divergent conclusions. The principle underlying the procedure prescribed by law with respect to suits relating to mortgages, partnership and partition, appears to be that a suit remains pending until a final decree is made directing a party to pay a certain sum of money, to deliver possession of particular property, etc. Until such a decree is made there is nothing which the Court can execute, inasmuch as a proceeding in execution is a proceeding to enforce an order requiring a party to perform or abstain from performing a particular act.

43. Applying this principle, it appears to me that it must be held that, in a mortgage suit for sale or foreclosure, the first decree which declares the rights of the parties is merely a preliminary or interlocutory decree and is not capable of execution. An application for the passing of an order absolute must accordingly be considered to be an application in a pending suit and is therefore not governed by the provisions of the Civil Procedure Code or of the Limitation Act relating to execution. This is the view which has for years past been consistently taken by the Calcutta High Court. Reference may be made to Ajudhia Pershad v. Baldeo Singh I.L.R. 21 Calc. 818 : Tiluck Singh v. Parsotein Proshad I.L.R. 22 Calc. 924; Tara Prosad Roy v. Bhobodeb Roy I.L.R. 22 Calc. 931; and Akikunnissa Bibee v. Roop Lal Das I.L.R. 25 Calc. 133. It was also the view taken by the Allahabad High Court in Ranbir Singh v. Drigpal I.L.R. 16 All. 23 but that decision has been overruled by the Judgment in Chunni Lal v. Harnam Das I.L.R. 20 All. 302 which follows the earlier rulings of that Court Ram Lal v. Narain I.L.R. 12 All. 539 and Oudh Behari Lal v. Nageshar Lal I.L.R. 13 All. 278. For the same reason in a redemption suit the mortgagee on the failure of the mortgagor to redeem may apply at any time for an order absolute for sale or foreclosure, and the mortgagor can also at any time before the passing of an order absolute under Section 93 of the Transfer of Property Act ask the Court to grant him an extension of time for payment under the last clause of that section Nandram v. Babaji I.L.R. 22 Bom. 771. As observed by Farran, C.J., in the decision there reported 'We think that the Court has power to give effect to the proviso to Section 93 if the postponement is made at any time before the final decree--the decree absolute--is made.... The original decree is we think only in the nature of a decree nisi...and the order passed under Section 93 is in the nature of a decree absolute'. The Full Bench decision Vallabha Valiya Rajah v. Vedapuratti I.L.R. 19 Mad. 40 is in no respect inconsistent with this Bombay ruling. All that was decided there was that the plaintiff (the mortgagor) having made default in payment of the mortgage money within the time fixed by the decree was not entitled to apply for execution. He must, in the first instance, apply to the Court for extension of the time within which payment is to be made. The same principle as to preliminary and final decrees is followed in suits for the recovery of immoveable property and mesne profits. Where the Court passes a decree for possession of immoveable property and directs an enquiry as to mesne profits, in the former respect the decree is final and may be executed; but, as regards the mesne profits, it is interlocutory merely, and the subsequent proceedings are in continuation of the original suit, and, until these proceedings are brought to a close and the amount due has been declared, there is no final decree. If the defendant dies subsequently to the interlocutory decree, by which his liability for mesne profits is declared, his representatives must be added as parties to the suit; otherwise they will not be bound by the final decree Reference as to this may be made to the decision of their Lordships of the Privy Council Maharaja Radha Parshad Singh v. Lal Saheb Rai L.R. 17 IndAp 150. In the case there disposed of it appears that it was decreed in 1856 that the plaintiff was entitled to certain lands and to mesne profits up to the date on which he recovered possession. 'That decree,' as their Lordships observe, 'no doubt found that the defendants in the suit were accountable for mesne profits, and by that finding they were bound; but it did not ascertain the amount of such profits, or determine the important question whether the defendants were liable jointly or severally in respect of their wrongful possession. There was no adjudication upon any of these matters until March 1877, when for the first time, the appellant (plaintiff) obtained a money decree which was capable of being put into execution.' The father of the respondents before the Privy Council was one of the defendants against whom the decree of 1856 was passed, but he died before 1877 and his sons were not brought in as parties prior to March 1877. Under these circumstances, their Lordships held that, as an operative decree, by which the extent and quality of the defendant's liability already declared in general terms were for the first time ascertained, bad not been obtained till after the death of the defendant, it could not bind his representatives as they had not been brought in as parties to the suit prior to the passing of the operative decree.

44. The same principle is followed in administration suits (Section 213, Civil Procedure Code) and in suits for the dissolution of partnership (Section 215, Civil Procedure Code) and for an account between principal and agent (Section 215-A, Civil Procedure Code), In all such cases the Court is bound in the first instance to pass an interlocutory order or preliminary decree declaring the rights of the parties and then to proceed to determine the actual amounts due to them; the suits still remain pending and it is only when these amounts have been ascertained that a final decree can be passed and proceedings in execution can be instituted. As to suits for the dissolution of partnership, reference may be made to the judgment in Thirukumaresan Chetti v. Subbaraya Chetti I.L.R. 20 Mad. 313 and to Forms Nos. 132 and 133 in the fourth schedule attached to the Civil Procedure Code. It will be remarked that Form No. 132 dissolving the partnership is termed an order, and that it is not till the actual sums that have to be paid by the plaintiff to the defendant, or vice versa, have been definitely ascertained that a decree is passed (vide Form No. 133). Similarly, in a suit for partition a decree declaring the rights of the parties and directing partition, although appealable vide the Full Bench decision in Dulhin Golab Koer v. Radha Dulari Koer I.L.R. 19 Calc. 463 is not the final decree in the suit, but is an interlocutory or preliminary decree, and an order made in the proceedings subsequently taken to effect the partition must be treated as an order made in the suit and not as one passed in execution of a decree. As was held by O'Kinealy, Macpherson, Trevelyan, and Banerjee, JJ., in the Full Bench judgment in Jogodishury Debea v. Kailash Chundra Lahiry I.L.R. 24 Calc. 725 an order passed in a suit for partition subsequently to the preliminary decree appointing a commission to make the partition is not an order in execution, and such being the case is not appealable under Section 244, Civil Procedure Code. It is an interlocutory order pending the suit which has not been finally decided. 'I am unable' observes Trevelyan, J,, 'to see how there can be any execution except of a final order or decree which is capable of being enforced against the person or property of a party bound by it. The subsequent proceedings, after an interlocutory decree, are the natural consequences of that decree, but are not, as far as I can see, within the ordinary acceptation of the term, in execution of it.' Where, under Section 396 of the Civil Procedure Code, a commissioner is appointed to make partition of immoveable property, the proceedings for the purpose of effecting the partition are proceedings in the suit itself and not proceedings in execution of the decree Dwarka Nath Misser v. Barinda Nath Misser I.L.R. 22 Calc. 425 and it is not till the commissioner has actually divided the land by metes and bounds that the final decree in the suit can be passed. The general principle that, it appears to me, is followed consistently in the Civil Procedure Code and in those sections of the Transfer of Property Act which deal with decrees in mortgage suits is that, until the specific sums due to the several parties or the defined item of landed property, etc., to be handed over have been finally and definitively determined, a suit remains pending and the Court is bound to proceed with it and of its own motion or on an oral application by a party to take the necessary steps for its final determination. It of course follows from the view that has now been expressed as to the exact significance of the order passed under Section 88 of the Transfer of Property Act that there is no limitation as to the time within which an application for an order absolute under Section 89 can be made. As to this, the Calcutta High Court holds that such an application is not governed by any limitation and then adds: 'We do not, however, mean to say that, in dealing with such matters, the Court will not be guided by considerations as to whether any delay on the part of the mortgagee has not been unreasonable so as to bring it within the rules applied in such cases by Courts of Equity' Tiluok Singh v. Parsotein Proshad I.L.R. 22 Calc. 924. It has been urged before us that the procedure thus contemplated is likely to give rise to considerable abuse and that it cannot have been the intention of the Legislature that there should be no limitation as to the period within which applications under Section 89 of the Transfer of Property Act can be made. Once, however, it is clearly recognised that everything that is done up to the passing of the order absolute is a proceeding prior to the final decree, there is no danger that there will be undue delay in the passing of such an order. If the supervising Courts insist on Subordinate Courts retaining on their files as pending every suit in which final orders under Section 89 have not been passed, the Judges of such Courts may be trusted to see that prompt steps are taken to bring about a final adjudication and relieve their file of the suit For these reasons I am of opinion that we should reply to the reference made to us to the effect that an order refusing to make an order absolute for sale upon an application under Section 89 of the Transfer of Property Act is not an order in execution, and as such appealable under Section 244 of the Civil Procedure Code, but that it is a decree from which, as such, an appeal lies.


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