1. The question raised in this appeal is what may be the true effect, of a decree passed between the parties on the 24th June 1896. The suit, in which this decree was passed, was a suit for a certain amount of money, as rent based upon a mortgage bond. In execution of the decree, the decree-holder asked that certain properties, other than those mentioned in the mortgage should be sold in satisfaction of his claim. The judgment-debtors opposed the application upon the ground that, as this was a mortgage-decree, it was not open to the decree-holder to sell these properties without exhausting the mortgaged properties.
2. The Court below has acceded to the prayer of the decree-holder, and the Judgement debtor has preferred this appeal impugning the correctness of that order.
3. It has been argued before us by the learned Vakil for the decree-holder that the decree should be construed to be a simple money-decree, a lien being declared on the properties mortgaged. The contention on the other side is that it should be regarded as a mortgage-decree under the Transfer of property Act though not in the form prescribed by that Act.
4. The suit was instituted upon the mortgage after the Transfer of Property Act came into force; and there can be no doubt that so far as the mortgagee, the plaintiff in the suit, was concerned, he asked for the reliefs indicated in that Act, one of the reliefs being 'that the mortgaged properties be sold for satisfaction of his claim, if the mortgagor fails to pay up within the time which the Court may allow.' But the Subordinate Judge, who made the decree, did not apparently follow the clear directions in the Act; and he worded the decree as follows: It is ordered and decreed that a decree be passed in favour of the plaintiff in respect of the sum of Rs. 5,387-10-13, together with costs and interest at the rate of six per cent, par annum up to the date of realization, and that the mortgaged properties be made liable (pae bund kea jae) for realization of the decretal money.' It is to be regretted that the Subordinate Judge should, in spite of the clear directions in the Transfer of Property Act, not have taken care to draw up a decree as the law directs. But, however that may be, the question that we have to consider in this appeal is whether the decree, as made, can be regarded as a mortgage-decree governed by the Transfer of Property Act, or whether it is a simple money-decree, with a lien only being declared upon the mortgaged properties.
5. In the case of Jogemaya Dassi v. Thackomoni Dassi (1896) I.L.R., 24 Cal. 473, which was decided by a Bench of three Judges of this Court, a question similar to that which arises in this appeal was discussed; and the learned Chief Justice in delivering judgment, referring to the terms of the decree which then came before the Court for consideration, expressed himself as follows: 'In my opinion this was a mortgage-decree, though not in the form prescribed by the Transfer of Property Act, which came into force on the 1st July 1882, but in the form in which, as I understand, such decrees had been for many years, and were drawn up in the Mofussil Courts. The decree provides for the payment of the mortgage debt, for the realization of the mortgaged property and payment thereout of the mortgage debt. The claim in this suit, it may be observed, asks that the claim, i.e., the money claim, should be realized out of the mortgaged property, and failing that, from any other property of the defendant. I think the decree of 1882 was a mortgage-decree, i.e., a decree made in a suit to enforce the mortgage in which the mortgagee asked, not merely for a personal judgment against his debtor, but for the realization of the mortgaged property to satisfy his claim.' The terms of the decree which the learned Judges in that case were called upon to consider were as follows: 'It is ordered that the suit be decreed, and that the defendants do pay to the plaintiff the amount claimed with interest thereon at the rate of 1 per cent, per month during the pendency of the suit, and costs of this case; the whole to bear interest as the rate of 1/2 per cant, per month from this date to the date of realization, to be realized from the property mortgaged and other properties of the defendant.' Mr. Justice Macpherson, who concurred with the Chief Justice in the view that he adopted, said as follows: 'But it seems to me that the decree of 1882 is in substance a decree for the sale of the mortgaged properties. It sets out those properties, and directs that the sum decreed should be realized from them, which can only mean by the sale of them, and that; was the relief asked for in the suit. Assuming that Sections 88 and 89 of the Transfer of Property Act, which came into force while the suit was pending, applied to the suit, the decree was not, it is true, made in conformity with them, as, instead of making a decree nisi followed by a decree absolute, the Court at once made a decree absolute. But the decree has never been questioned, and is now a final decree as between the parties. The case of Chundra Nath Dey v. Burroda Shoonnduru Ghose (1805) I.L.R., 22 Cal., 813,' (to which I shall have to refer presently) 'is distinguishable, as the Court there in effect held that there was no decree for sale,' and so on. In a subsequent case before the learned Chief Justice and Mr. Justice Banerjee, Fazil Howladar v. Krishna Bandhoo Boy (1897) I.L.R., 25 Cal., 580, the learned Judges had also to consider the effect of a decree in somewhat similar terms; and they agreed with the decision come to in the case of Jogemaya Dassi v. Thackomoni Dassi, and held that the decree was a mortgage-decree. The terms of the decree ran as follows: 'It is ordered that the suit be decreed ex parte, and the sum of Rs. 323 claimed (in the suit), and the costs of this suit Rs. 34-8, with interest at six per cent, per annum from this day till the date of realization, plaintiff do get from the hypothecated property. If insufficient, defendant to remain personally liable.' And it was held, as I have already said, that this ought to be regarded as a mortgage-decree in terms of the Transfer of Property Act.
6. In the case of Chundra Nath Dey v. Burroda Shoondury Ghose (1895) I.L.R.,22 Cal., 813, referred to in the judgment of Macpherson, J., in Jogemaya Dassi v. Thackomoni Dassi (1896) I.L.E., 24 Cal., 473, and upon which reliance has been placed by the learned Vakil for the decree-holder, the terms of the decree which had to be considered by the Court were: 'The suit is decreed ex parte. The plaintiff' to obtain the amount of his claim and costs of the suit with interest at six per cent, per annum until the date of realization, and the mortgaged property to remain liable for the satisfaction of the debt, etc.' And it was held that this was not a mortgage-decree, and that it was not, therefore, governed by the Transfer of Property Act.
7. It seems to me upon a consideration of the different rulings that the question for consideration in a case like this is, whether there is an order in the decree for sale of the mortgaged properties, or the decree simply declares a lien upon those properties. As already stated, the mortgagee in the present case unquestionably asked for a decree in terms of the Transfer of Property Act and for the sale of the properties mortgaged. The Court, however, did not make a decree in exact terms of that Act. But there can be no doubt that what the Court really meant to do, and did, was to make a decree ordering that the properties mortgaged be sold for the realization of the amount decreed to the mortgagee. The terms of the decree are more similar to those in the cases of Jogemaya Dassi v. Thackomoni Dassi and Fazil Howladar v. Krishna Bandhoo Roy, to which I have already referred, than the terms which had to be considered in the case of Chundra Nath Dey v. Burroda Shoondury Ghose.
8. In this view of the matter, the decree in question should, in my opinion, be regarded as a mortgage-decree governed by the Transfer of Property Act, though not made in the form prescribed by that Act. It follows from this that it is not open to the decree-holder to ask in the first instance for the sale of properties other than the properties mortgaged before exhausting the mortgaged properties, and without obtaining an order such as is prescribed by Section 90 of the Transfer of Property Act.
9. The result is that this appeal must be allowed, the decree-holder being at liberty to proceed against the mortgaged properties in the first instance, and then to take such steps as he may be advised, to sell the other properties of the judgment-debtor.
10. I cannot think that the decree in this case can properly be said to be a decree under the provisions of the Transfer of Property Act. The decree is to the effect that, 'the mortgaged property shall be made liable (pae bandh) for the realization of the decretal amount.' The vernacular expression pae bandh means 'tied by the leg' or 'fettered'--that is 'incumbered.' It does not seem to me to imply sale. No doubt the decree directs that the mortgaged property shall be 'made' liable. But this is certainly not a clear direction that the property is to be sold. The mortgagee undoubtedly in para 3 of his plaint asked for a decree under the provisions of the Transfer of Property Act; but the Court, whether intentionally or through inadvertence, does not appear to me to have given him such a decree as he sought for. I am supported in this view by the case of Chundra Nath Dey v. Burroda Shoondury Ghose (1895) I.L.R., 22 Cal., 813. The decree in that case was to the effect that the property was 'to remain liable for the satisfaction of the debt.' On the other hand the cases of Jogemaya Dassi v. Thackomoni Dassi, and Fazil Howladar v. Krishna Bandhoo Boy, have been referred to on behalf of the appellant. These are no doubt authorities for holding that a decree, such as the present one, though not in form a decree under the provisions of the Transfer of Property Act, may yet be regarded and given effect to as such.
11. Personally, I am most reluctant to put any obstacle in the way of decree-holders who seek to recover monies, which Courts after full enquiry have held them to be entitled to. But in the face of the two last mentioned rulings, I do not think I would be justified in dissenting from the conclusion at which my learned brother has arrived in this case. I, therefore, concur in decreeing this appeal.