1. This appeal arises out of an application by the plaintiff decree-holder to recover the balance of his mortgage debt, otherwise than out of the property sold, under Section 90 of the Transfer of Property Act.
2. The Court of first instance refused that application, relying on the case of Ram Ranjan Chakravarti v. Indra Narain Dass 33 C. 890 : 10 C.W.N. 862. The lower appellate Court has construed that authority differently and has allowed the application.
3. In second appeal, by the defendants judgment-debtors, the contention is that, inasmuch as the plaintiff consented to reduce his security to 2 bighas 16 cottahs only, he was not entitled to proceed against any other property of the judgment-debtors under Section 90 of the Transfer of Property Act.
4. The facts are these: The plaintiff sued to recover a sum of Rs. 795 on the basis of a mortgage-deed, executed in favour of his assignor the defendant No. 6, in which some. 16 bighas of land were hypothecated. When the suit came on for trial, the parties came to terms, and a decree was passed in favour of the plaintiff for Rs. 450 including all costs to be realised from the sale of 2 bighas and 16 cottahs of land only. The decree is evidently a mortgage-decree and it was not necessary, (in fact it is unusual), for any further stipulation to be entered in such a decree that the decree-holder would be entitled to proceed under Section 90 in the event of the debt not being satisfied by the sale of the hypothecated property.
5. Now, if it is a mortgage-decree, and if there is nothing to indicate that the parties intended to contract themselves out of the provisions of Section 90 of the Transfer of Property Act, the plaintiff would be clearly entitled to proceed under that section, when, as has been here found, he has been unable to realise more than Rs. 200 by the sale of the limited security. The construction put by the lower appellate Court, upon the case of Raja Ram Ranjan Chakravarti v. Indra Narain Dass 33 C. 890 : 10 C.W.N. 862 appears to be a perfectly correct one. In that case, all that was done was without the consent of the mortgagor, and there was nothing to show that he acquiesced in the release of substantial portions of the mortgaged property. In the case now under appeal the parties willingly accepted a modification on the one side, of the mortgage-debt and, on the other, of the security out of which that mortgage-debt was to be realised. There is nothing to indicate that the parties did not contemplate the further procedure under Section 90 in accordance with the usual practice of the Courts in executing decrees of this kind.
6. I think, therefore, that this appeal must fail on the only point that has been urged before me. The appellant must pay the costs of the plaintiff-decree-holder.