1. The question we have to answer is, whether or not Section 310A of the Code of Civil Procedure applies to a sale of mortgaged property under a decree made in accordance with the provisions of the Transfer of Property Act. The question has arisen by reason of the decision in Ashruf Ali Chowdhry v. Net Lal Sahu (1896) I.L.R. 23 Cal. 682 from which the referring Judges, Trevelyan and Stevens, JJ., dissented. That case appears to me to be based upon the view that under rules framed by this Court (C. O. No. 13, dated 27th April 1892) 'the provisions of the Code were made applicable to sales of mortgaged property ordered by the Court under the Transfer of Property Act.' I think this, which is the foundation of that judgment, is a mistake; the rules in question only make certain sections of the Code applicable to such sales, and not the whole Code. Section 310A of the Civil Procedure Code only became law in 1894, whilst the above rules came into effect in April 1892. The judgment-debtor, the mortgagor, has contended that the property was sold ' under Chapter 19 ' of Lie above Code, within the meaning of Section 310A. That, to my mind, is a fallacy; the property was sold under the decree made in pursuance of the provisions of the Transfer of Property Act. As Section 310A had not been passed at the time the above rules came into effect, that section could not have been included among those mentioned in the rules in question. But even if it had been, I question whether such a rule would not have been ultra vires. Section 104 of the Transfer of Property Act only enables the High Court to make rules 'consistent with this Act' (The Transfer of Property Act)' for carrying out.... the provisions contained in this chapter.' Let us consider what the effect would have been of a rule which made or purported to make Section 310A applicable to such a sale as that in question. Under Section 89 of the Transfer of Property Act, if an order for an absolute sale be passed, the mortgagor's right to redeem and the security are extinguished and the proceeds of sale are to be applied according to the provisions of Section 88 of the same Act. Those are the mortgagee's rights under that Act. But if Section 310A of the Code is to apply to such a case, the mortgagee's rights are materially affected as are those of the purchaser, since, after the sale has been made, the mortgagor, on certain terms, may yet redeem his property. In other words, the period for redemption is substantially extended. If, then a rule had been made by the High Court making Section 310A applicable to such a sale, it seems to me exceedingly doubtful whether such a rule would have been 'consistent with the Act.' And in the case of a sale ordered at the suit of a puisne mortgagee or where there are a succession of puisne imcumbrances inconvenience at least, if not substantial difficulties, might arise from applying Section 310A to a sale in such a case.
2. Whilst there is good reason for such a section as 310A in relation to sales of property, other than mortgaged property, there is no such reason as regards the latter. In the former case the sale may have been hurried on, the debtor may consequently not have been able to get the money, and the Legislature may have reasonably thought that the debtor should have one more chance of, perhaps, retaining his ancestral property, by paying the money on certain terms. But this reasoning has no application to the case of mortgaged property, where under the decree the mortgagor is given at least six months to redeem. The case of Raja Ram Singhji v. Chuni Lal (1897) : I.L.R. 19 All. 205 is cited by the applicants as an authority in their favour, but the express point we are now discussing was not decided in that case, and the observations of the Judges were admittedly obiter dicta. I am unfortunately unable to concur in them.
3. It is urged that the provisions for the execution of decrees in the Code of Civil Procedure are general in their application, and apply to the sales of all mortgaged properties, where the decrees have been made under the Transfer of Property Act. I am unable to accede to this view, for, if this were so, it is very difficult to see why Section 104 was introduced into the Act. In other words, if the whole of the provisions of the Code as to the execution of decrees apply to a sale such as that in question, Section 104 of the Transfer of Property Act, was quite unnecessary. But it is abundantly clear that the Legislature left it to the High Court to frame rules consistent with the Act to carry out the provisions of that particular chapter of that Act, some of which relate to the sale of mortgaged properties. In the face of this particular section (Section 104) it is difficult to say that the provisions of the Code of Civil Procedure were to apply, and least of all, a provision which was not even law when the Transfer of Property Act was passed. I may add that to apply Section 310A to the sale of mortgaged properties in Calcutta would not only, in my opinion, have a mischievous tendency, but would, I consider, be inconsistent with the practice which has hitherto prevailed. For these reasons I answer the question by saying that Section 310A of the Civil Procedure Code does not apply to sales of mortgaged property under the Transfer of Property Act. The rule must be discharged with costs, including the costs of this reference.
4. I agree.
5. I also agree.
6. I agree with the Chief Justice.
7. The question referred to us is whether Section 310A of the Civil Procedure Code applies to sales of mortgaged property under the Transfer of Property Act.
8. I agree with my learned colleagues in thinking that the question ought to be answered in the negative; and I base my decision upon this short ground.
9. Section 310A, as its language clearly shows, applies by its own force only to sales of immoveable property under the chapter of the Civil Procedure Code in which it is included; and it may apply to any other sales to which it may be made applicable expressly or by necessary implication. Now the sale in this case was one not under the Code of Civil Procedure, but under the Transfer of Property Act; that is under the rules made by this Court under Section 104 of that Act; and neither by these rules, nor by any other rule or law, has Section 310A been extended to such a sale. Section 310A cannot, therefore, apply to the sale in question.
10. It was argued that as by the rules made by this Court under Section 104 of the Transfer of Property Act, most of the provisions of the Code of Civil Procedure are made applicable to sales under that Act, such sales should be held to be sales under Chapter XIX of the Code, and Section 310A should be held applicable to them in consequence; and in support of this argument the case of Ashruf Ali Chowdry v. Net Lal Sahu (1896) I.L.R. 23 Cal. 682 was relied upon. The case cited is no doubt in point. But I must respectfully dissent from it, as the sale is one under the rules made by this Court and not under Chapter XIX of the Code of Civil Procedure, and none the less so, because certain of the provisions of that chapter have been made applicable to it. Section 310A had not been enacted when the rules in question were made by this Court, and these rules do not say that sales under the Transfer of Property Act are to be held under Chapter XIX of the Code of Civil Procedure, or that the provisions of that chapter, taken as a whole, shall apply to such sales. The enactment of Section 310A cannot, therefore, affect such sales.
11. In this view of the case I think it unnecessary to decide whether this Court has the power under Section 104 of the Transfer of Property Act to make Section 310A apply to sales under that Act. If it had been necessary to decide that, question, I should have been inclined to answer it in the affirmative.