1. In my opinion, this Rule should be made absolute. The court below was wrong in saying that a claim under Section 73, Transfer of Property Act, as it now stands can be enforced only a suit. The section as it stood before its amendment in 1929 only created a charge in favour of the mortgagee on the surplus sale proceeds of the mortgaged property where it was sold through failure to pay arrears of revenue or rent due in respect thereof.
If the mortgagee had only a charge created in his favour, it could obviously be enforced by means of a suit but the section was amended by Act 20 of 1929, and by the amendment it was declared that the mortgagee can claim payment of the mortgage money out of the surplus sale proceeds, remaining. There is no question now of bringing a suit to enforce the claim. Sub-section (3) no doubt uses the word 'enforce', but that must evidently refer to the mode in which the claims are to be satisfied under Sub-sections (1) and (2). There is no reason, therefore why in this case the petitioner will not be entitled to have his dues satisfied out of the surplus sale proceeds as far as the sale proceeds will permit.
The fact that there has been an award which has not only determined the amount due under the mortgage, but also provided for payment in a number of instalments, will not affect the mortgagee's right to be paid out of the surplus sale proceeds, in accordance with the provisions of Section 73, Transfer of Property Act. Sub-section (3) makes it clear that the mortgagee will be entitled to such payment, notwithstanding that otherwise the mortgage money may not be immediately payable.
2. The result is that the Rule is made absolute, the order of the learned Munsiff is set aside and it be directed that the Munsiff should issue a payment order in favour of the mortgagee out of the surplus sale proceeds.
3. There will be no order as to costs.