1. This is an appeal against an order of the Subordinate Judge of Chittagong allowing execution to proceed in satisfaction of a decree obtained by the opposite party against the present appellant. The decree is dated the 12th July 1898, and is an ordinary decree obtained in a suit brought by the present respondents to recover a sum of money due to them on a mortgage. The decree directed that the debt should be discharged by sale of the mortgaged property.
2. It appears that prior to the mortgage a declaration had been issued by Government on the 19th July 1893 to the effect that the property covered by the mortgage would be acquired by Government for the Assam Bengal Railway. The date of the mortgage was the 28th November 1895 corresponding to 10th Aghran 1257 Maghi. In due course the property covered by the Government declaration including the mortgaged property appears to have been taken possession of by Government and compensation for the acquisition was awarded. There was a prior mortgage on the property and the first mortgagee brought a suit on his mortgage and obtained a decree and in satisfaction of that decree sold off certain properties which were covered by both the mortgages but were other than those acquired by the Government. As the sale proceeds were not sufficient to satisfy his decree in full, he in another application for execution, recovered the balance out of part of the compensation money in the hands of the Collector of Chittagong.
3. The present application for execution was made in case No. 263 of 1902 and the decree-holders sought to have their decree executed against the balance of the money standing in the name of the appellant as a portion of the amount awarded by the Land Acquisition Collector as compensation for the property acquired by Government. The present appellant (judgment-debtor) objected to the decree being executed against the sum of money and her contention has been that as the decree directed that the mortgaged properties should be sold and as the mortgaged properties have now ceased to exist, therefore, the execution cannot be taken out of the decree passed under Section 88 of the Transfer of Property Act. The only remedy which it is suggested the decree-holders have is to apply for a further decree under Section 90 of the Act.
4. The learned Subordinate Judge hold that execution of the decree should proceed against the balance of the sum awarded by the Collector as compensation for the acquisition of the mortgaged properties and he directed that execution should proceed against that money in the hands of the Collector.
5. The judgment-debtor has appealed and in support of her appeal three grounds have been taken.
6. The first ground taken is that the decree is incapable of execution; the second is that the decree which is sought to be executed ought to be strictly executed, and the third is that before the decree could be executed the first mortgagee ought to have been made a party. Taking the third ground first we can see no reason why in this case the first mortgagee should have been made a party. We understand that he was examined by the decree-holders in the execution case and that from his evidence it appears that his decree has been fully satisfied. So far, therefore, as he is concerned he is in no way affected by the execution of the decree against the balance of the money standing to the credit of the decree-holders in the Collectorate. The first and second grounds practically resolve themselves into this that as the decree was for sale of the mortgaged property and as the mortgaged property has now ceased to exist in a condition in which the decree-holders can sell it in satisfaction of their decree, therefore, the decree cannot be executed, and the decree-holders' only remedy is to obtain a fresh decree under Section 90 of the Transfer of Property Act. In our opinion this contention is not sound. The suggestion seems to be that as the mortgagor executed a mortgage after the declaration was made by Government for the acquisition of the property he can now take advantage of his own fraud and compel the mortgagee to seek to recover the amount of the mortgage debt from the property other than that hypothecated under the mortgage bond. In our opinion when the property covered by the mortgage was under the land acquisition proceedings converted into money the lien which was attached to the property was transferred to that which then represented the property, viz., the compensation standing to the credit of the mortgagor in the Collectorate and we can see no reason why the mortgagee in satisfaction of his decree should not be allowed to take out execution against the money in the Collectorate. The obvious object of Section 88 of the Transfer of Property Act is to secure the payment of the mortgage debt by transferring the mortgaged property into money and the mere fact that the mortgaged property has been changed into money by some authority other than the Court would not, in our opinion, disentitle the mortgagee from recovering the amount of his debt out of that money or compel him in order to obtain satisfaction of his debt to obtain a further decree under Section 90 of the Transfer of Property Act. Our attention has been drawn to the case of Basa Mal v. Tajammal Husain 16 A. 78 at p. 79 in which Mr. Justice Aikman held that in a case similar to the one before us the proper remedy for the decree-holder was to apply under Section 9 of Act X of 1870 to the Collector in order to obtain satisfaction of his decree out of the compensation money. We are unable to agree with that decision. In our opinion a decree-holder is entitled to obtain through the Court which granted him the decree satisfaction of that decree out of the money awarded as compensation on the acquisition of the mortgaged property by Government, that money representing, so far as he is concerned, the property which was hypothecated to him as security for the mortgage debt. Section 9 of Act X of 1870 does not, in our opinion, apply to the case of a decree-holder seeking satisfaction of his decree but it covers the case of persons who have definite interests in the land acquired and seek to recover in ordinary course from the Collectorate their shares of the compensation money.
7. In our opinion the Subordinate Judge was right in the view which he took that the present respondents, the decree-holders, were entitled to take out execution of their decree against the compensation money for the amount standing to the credit of the appellant in the Collectorate and the objection raised on behalf of the appellant fails.
8. In our opinion the order of the learned Subordinate Judge is correct and should be upheld. We, accordingly, dismiss the appeal with costs.
9. We assess the hearing fee at ten gold mohurs. So far as the costs of the paper-book incurred by the respondents in the appeal are concerned we allow them a half share only as costs as it has not been shown to our satisfaction that the printing of so many additional papers was necessary for the purposes of the appeal.