W. Comer Petheram, C.J. and Beverley, J.
1. On the 2nd June 1893 the respondents in this appeal obtained a decree against the appellants and others upon certain mortgage bonds under the provisions of Section 88 of the Transfer of Property Act; the 1st July 1893 being fixed as the data on which the money found to be due was to be paid. On the 29th July 1893 the decree was made absolute. On 5th August an order was made for the sale of the mortgaged properties, and the sale was advertised, but on 9th September the sale was stayed on payment of a portion of the amount of the decree and the execution proceedings remained in abeyance. On the 27th June 1894 the respondents applied to continue the execution proceedings and to bring the properties to sale. A fresh proclamation was issued fixing 6th August for the sale, and on the following day the properties were put up to sale, and were (with the permission of the Court) purchased by the decree-holders. Within thirty days of the sale the appellants deposited in Court the amount of the decree and applied to have the sale set aside under the provisions of Section 310A of the Code of Civil Procedure. The application, however, was disallowed on the authority of the Full Bench decision in Girish Chunder Bose v. Apurba Krishna Das I.L.R. 21 Cal. 940, in which it was held that that section would not apply when the decree had been made before the passing of Act V of 1894, by which Act Section 310A was introduced into the Code. That Full Bench decision has since been overruled by the decision of the Full Court in the case of Jagodanund Singh v. Amrita Lall Sircar L.R. 22 Cal. 767, and the appellants accordingly urge that they are entitled to the benefits of that section.
2. But it is contended before us that that section applies only to sales under the Code in execution of decrees for money, and will not apply to the case of a sale of mortgaged property in execution of a decree made in pursuance of the provisions of the Transfer of Property Act. We think that there is no force in this contention. Section 310A enacts that 'any person whose immoveable property has been sold under this chapter' may apply in terms of the section; and, although the order for sale was made under the provisions of the Transfer of Property, Act, we think we must hold that the sale itself took place under the Code. By Section 104 of the Transfer of Property Act the High Court is given power to make rules for carrying out the provisions contained in the chapter on Mortgages, and by the 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. That being so, we think we must hold that the mortgaged properties were sold under Chapter XIX of the. Code. No doubt the holder of a mortgage-decree occupies a somewhat better position than that of the holder of a decree for money. His decree gives him a special lien upon the property mortgaged as security for his debt; but it is only in the event of the mortgagor failing to pay according to his contract that the mortgagee has the right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage money. [Transfer of Property Act, Section 58 (6)].
3. The provisions of Section 86 of the Transfer of Property Act allow a further time within which the mortgagor may pay up the amount found to be due from him and so save the property from sale. And in the case of Poresh Nath Moznmdar v. Ramjadu Mozumdar I.L.R. 16 Cal. 246 it has been held by this Court that in a suit for foreclosure the mortgagor may redeem at any time before an order absolute for foreclosure has been made under Section 87 of the Act. It is only one step further, and we think that it does violence to no principle of justice, to hold that before the sale has been confirmed the mortgagor may come in and enjoy the benefit which the Legislature has thought fit to confer on all those, whose immoveable property has been sold in execution of a decree.
4. Another point taken before us is that, inasmuch as an application was made to set aside the sale under Section 311 of the Code, the application under Section 310A will not lie. The proviso to Section 310A runs as follows: 'Provided that, if a person applies under the next following section to set aside the sale of his immoveable property, he shall not be entitled to make an application under this section.' With regard to this proviso we think it is sufficient to say that the application under Section 311 was made after that under Section 310A had been rejected on the ground that that section had not retrospective effect, and that that application was made by judgment-debtors other than those who made the application under Section 310A.
5. Under these circumstances we think that this appeal must be allowed with costs, which we assess at five gold mohurs.
6. The order of the Subordinate Judge of 5th September 1894 will be reversed, and, it being understood that the amount required to be deposited by the provisions of Section 310A was deposited within thirty days from the sale, the sale will be set aside.