1. This is an appeal on behalf of the plaintiff against a decree in a mortgage suit whereby a decree previously made therein under Section 90 of the Transfer of Property Act has been discharged.
2. The plaintiff sued to enforce a mortgage security and obtained a decree on the 28th January 1897. This was not merely the usual decree for sale but also a personal decree against the defendant-mortgagor in the event of non-satisfaction of the mortgage dues by sale of the mortgage properties. That this decree was not in strict conformity with the provisions of the Transfer of Property Act is clear from a long series of judicial decisions: Lal Behary v. Habibur Rahman 26 C. 166 : 3 C.W.N. 8; Raja Ram Ranjin v.IndraNarayan 33 C. 990 : 10 C.W.N. 862; Damodara v. Vyanku 31 B. 244 : 8 Bom. L.R. 199; Badri Das v. Inayat Khan 22 A. 404 and Abbake v. Krishnayya 32 M. 534 : 5 M.L.T. 246 : 4 Ind, Cas. 1120. The decree, for sale, was, however, repeatedly executed, and the mortgage properties were exhausted. The decree-holder then proceeded, in one instance at least, to execute the personal decree, apparently without objection on the part of the mortgagor judgment-debtor. Thereafter, the judgment debtor died. For some unexplained reason, the decree-holder did not take any further steps to execute the decree he held; but at a time when an application for execution of that decree would have been successfully met by the plea of limitation, he applied under Section 90 of the Transfer of Property Act for a personal decree against the infant representatives of the judgment-debtor, then living under the protection of their maternal aunt. It is a matter for controversy between the parties, whether notice of this application was duly served upon the infants and their proposed guardian as it ought to have been served, on the principle explained in Abdul Sattar v. Satya Bhushan Das 35 C. 767. The Subordinate Judge has found that the story of service of notice is an invention; but it is not necessary for our present purpose to pronounce any opinion upon that question, because even if we assume that the notice was duly served, it is obvious that the proceedings under Section 90 were wholly infructuous as against the infants. The proposed guardian did not enter appearance, and did not accept the office of guardian. The result was that the infants, even if it be assumed that they were duly served, were not represented at the hearing, yet a decree under Section 90 was made against them. They subsequently applied to the Court to cancel this decree as improperly made; this application was granted, and the decree was discharged. We are now invited to hold that the decree ought not to have been set aside. It is impossible, in our opinion, to accede to this contention. No effective steps were taken for the representation of the infants in the proceeding under Section 90, which was essentially a proceeding in a pending suit for a supplementary decree. Purna Chandra v. Radha Nath 4 C.L.J. 141 : 33 C. 867; Rahmat Karim v. Abdul Karaim 6 C.L.J. 119 : 34 C. 672 : 11 C.W.N. 674. Where the proposed guardian did not enter appearance, the Court ought to have been asked by the plaintiff to appoint one of its officers as the guardian ad litem of the infants. This was not done and the infants were wholly unrepresented at the hearing of the application. That a decree, made under these circumstances, is absolutely null and void, in so far as the infants are concerned, is clear from the case of Narsingh Narain v. Sheikh Jahi Mistry 15 C L.J. 3: 13 Ind. Cas. 414 where the earlier decisions on the point will be found analyzed and reviewed. This decree, which does not bind the infants and cannot be executed against them, has, consequently, been very properly discharged. This conclusion is sufficient for the disposal of the appeal. But, if the appeal be dismissed on this ground alone, the decree-holder will still be free to revive his application under Section 90 of the Transfer of Property Act and proceed with it after he has taken steps for the proper representation of the infants. We are of opinion, however, that this litigation should not be farther protracted, and we, therefore, proceed to examine the grounds mentioned in the judgment of the Subordinate Judge.
3. It has been argued on behalf of the decree-holder that as this mortgage decree was not in conformity with the provisions of the Transfer of Property Act, it is open to him to repudiate that decree and to ask for a personal decree against the judgment-debtor or his representatives in terms of Section 90. This position is clearly untenable. The original decree, though not strictly in conformity with the provisions of the Transfer of Property Act, is a good and valid decree as between the parties,thereto: Bechu Singh v. Bichharam Sahu 10 C.L.J. 91 : 1 Ind. Cas. 677. At any rate, the decree-holder who has obtained that decree and has executed it, cannot now be permitted to turn round and contend that the decree is inoperative. It is further clear that the decree under Section 90 of the Transfer of Property Act cannot be made in the present case. As was pointed out in the case of Purna Chandra v. Radha Nath 4C.L.J. 141 : 33 C. 867 three essential elements must be established before a decree under Section 90 can be obtained, namely, first, that though there has been a decree for sale and the mortgaged property has been exhausted thereunder, the sale-proceeds have proved insufficient to pay the amount due to the plaintiff; secondly, that the balance is legally recoverable from the mortgagor otherwise than out of the property sold; and, thirdly, that a personal decree has not previously been made. If the decree-holder has obtained a personal decree against the judgment-debtor, he cannot subsequently invite the Court to repeat the operation already performed and thus obtain a second personal decree against the mortgagor: Dina Nath v. Bejoy Krishna 7 C.W.N. 744; Sadho Singh v. Maharaja of Benares 29 A. 12 : 3 A.L.J. 606 : A.W.N. (1906) 251. In this view also, the decree under Section 90, which was made notwithstanding the personal relief granted by the original decree, has been rightly set aside.
4. The result is that the decree of the lower Court is affirmed and this appeal dismissed with costs.
5. It is conceded that this order will govern R.A. No. 352-2 of 1909, which is accordingly dismissed with costs.
6. As there was a consolidation order, there will be one hearing fee in the two Appeals Nos. 352-1 and 352-2.
7. The Appeal No. 368 of 1909 against the order in proceedings in execution of the decree under Section 90, necessarily fails and is dismissed with costs. We assess the hearing fee at two gold mohurs.