Skip to content


Chandra Kishore Munshi Vs. Dinendra Nath Sannyal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal436
AppellantChandra Kishore Munshi
RespondentDinendra Nath Sannyal
Cases ReferredGanga Sahai v. Kishen Sahai I.L.R.
Excerpt:
transfer of property act (iv of 1885), sections 2, 67, 99 - mortgage decree--execution. - .....upon the properties hypothecated therein and authorizing the sale of the said properties. this decree was passed on the 15th december 1880 before the transfer of property act (iv of 1882) came into operation. the decree was, from time to time, enforced without any objection on the part of the judgment-debtor, but upon an application, out of which this appeal arises, having been made on the 15th april 1885, the judgment-debtor objected that, under section 99 of the transfer of property act, the decree could not be executed, and the property brought to sale, without instituting a suit and obtaining a decree under the provisions of section 67 of that act. the lower court refused to five effect to this objection, and the appeal is against the order of the subordinate judge allowing.....
Judgment:

McDonell and Ghose, JJ.

1. It appears that the decree-holder in this case obtained against the judgment-debtor a decree upon a mortgage bond, declaring his lien upon the properties hypothecated therein and authorizing the sale of the said properties. This decree was passed on the 15th December 1880 before the Transfer of Property Act (IV of 1882) came into operation. The decree was, from time to time, enforced without any objection on the part of the judgment-debtor, but upon an application, out of which this appeal arises, having been made on the 15th April 1885, the judgment-debtor objected that, under Section 99 of the Transfer of Property Act, the decree could not be executed, and the property brought to sale, without instituting a suit and obtaining a decree under the provisions of Section 67 of that Act. The lower Court refused to five effect to this objection, and the appeal is against the order of the Subordinate Judge allowing execution to proceed.

2. It is contended before us that Section 99 of the Transfer of Property Act applies to all decrees, whether they be money decrees or mortgage decrees; and that in every case of the kind, if the decree was not obtained under Section 67, the mortgaged property cannot be sold.

3. We are unable to accede to this argument. As we read Section 99 it was never intended to apply to a decree already obtained declaring a lien over, and authorizing a sale of the mortgaged property. It was evidently intended to apply to other decrees not being mortgage decrees. But even if we were to concede that it was so, we are nevertheless of opinion that Section 2 of the Act saves the right of the decree-holder in the present case to obtain a sale of the property hypothecated to him. That section, among other matters, runs as follows:

But nothing herein contained shall be deemed to affect (e) any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability.

4. Now, in the present case, a legal relation was constituted, before the Act came into force, between the parties by the decree that was passed in December 1880. By reason of this relation the decree-holder has a 'right' to enforce his decree for the satisfaction of his claim; and he is entitled to the 'relief,' in respect to such right, that he now prays for, viz., to have the property sold in execution of the said decree.

5. The learned vakeel for the appellant quoted in support of his arguments the case of Ganga Sahai v. Kishen Sahai I.L.R. 5 All. 262. All that we need say on the present occasion is, that the identical point raised in this case was not that which was raised in that case. There the question was one of procedure, here the question is one of substantive right.

6. We are, therefore, of opinion that the order passed by the lower Court was right, and we accordingly affirm it with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //