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Shaffar Khan Vs. Satyanunda Das Gupta - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in4Ind.Cas.545
AppellantShaffar Khan
RespondentSatyanunda Das Gupta
Cases ReferredRaj Kumar Singh v. Sheo Narain Sahu
Excerpt:
transfer of property act (iv of 1882), sections 86 and 87 - mortgage--foreclosure suit--mortgagee put in possessions--costs of suit recoverable--from mortgagor personally. - .....judge has held, on the authority of the case of rutnessur sein v. jusoda 14 c. 185 that the decree-holder is entitled, to execute his decree for costs against the judgment-debtor separately.2. the judgment-debtor appeals. we are referred to the provisions, of section 86 of the transfer of property act, and the full bench ruling of the allahabad high court in maqbul fatima v. lalta pershad 20 a. 523.3. the provisions of section 86 do not help us. in the case of maqbul fatima v. lalta pershad 20 a. 523 the decree was one for sale under section, 88 of the transfer of property act and the full bench merely decided that the decree in that particular case did not contain a direction for the recovery of costs personally from the judgment-debtor. we are unable to distinguish the facts of.....
Judgment:

1. This is a second appeal against an order of the District Judge of Dacca passed in an execution case. The question at issue is whether the decree-holder who has obtained a decree for foreclosure and who has been put in possession of the mortgaged property is entitled to execute his decree for costs against the mortgager personally. The decree itself is not explicit on this point. 'It declares the plaintiff entitled to Rs. 2,612-10-0 for the mortgage debt and to Rs. 220-3-0 for costs. The District Judge has held, on the authority of the case of Rutnessur Sein v. jusoda 14 C. 185 that the decree-holder is entitled, to execute his decree for costs against the judgment-debtor separately.

2. The judgment-debtor appeals. We are referred to the provisions, of Section 86 of the Transfer of Property Act, and the Full Bench ruling of the Allahabad High Court in Maqbul Fatima v. Lalta Pershad 20 A. 523.

3. The provisions of Section 86 do not help us. In the case of Maqbul Fatima v. Lalta Pershad 20 A. 523 the decree was one for sale under section, 88 of the Transfer of Property Act and the Full Bench merely decided that the decree in that particular case did not contain a direction for the recovery of costs personally from the judgment-debtor. We are unable to distinguish the facts of the present case from those of Rutnessur Sein v. Jusoda 14 C. 185 which has been followed in Damodar Das v. Budh Kuar 10 A. 179 in both of which cases the decrees to be executed were foreclosure decrees. We further observe that Beverley, J., in his judgment in Rutnessur Sein v. Jusoda 14 C. 185 pointed out that in Section 87 it is provided that on an order absolute for foreclosure being passed, the debt secured by the mortgage (not the costs incurred in enforcing that debt) shall be deemed to be discharged. There seems to be good reason for this.' The holder of a decree for foreclosure is clearly entitled to possession, if his mortgage debt be not paid. There is no reason why the judgment-debtor should not be personally liable for the costs of the suit against him, which is something over and above the mortgage-debt.

4. Our attention has been called to the decision in Raj Kumar Singh v. Sheo Narain Sahu 12 C.W.N. 364; 35 C. 431; 8 C.L.J. 152. It does not appear to us to be in point. It relates to a mortgage decree for sale and lays down that the holder of such a decree must obtain an order under Section 90 before he can proceed to execute his decree for costs against the other property of the judgment-debtor. No such order is required in this case.

5. We dismiss this appeal with costs, 5 gold mohurs.


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