Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Chundra Nath Dey And Anr. vs Burroda Shoondury Ghose on 4 June, 1895
Equivalent citations: (1895) ILR 22 Cal 813
Bench: W C Petheram, Beverley


W. Comer Petheram, C.J. and Beverley, J.

1. It is not necessary to go over the facts of this case, as they are fully stated in the judgments of the Courts below, and the only question we have to consider is whether a decree in this form, in a suit brought after the Transfer of Property Act came into operation, can be executed by sale of the mortgaged property.

2. The suit was upon a mortgage deed to recover the money secured by the deed upon mortgage of various properties, of which that now in question was one, though at the time of the mortgage this particular property was in the possession of a tenant for life, the mortgagor having, at that time, only a reversionary interest in it.

3. The operative part of the decree was as follows: “The suit is decreed ex parte. The plaintiff to obtain the amount of his claim and costs of the suit with interest at 6 per cent, per annum until the date of realization, and the mortgaged property to remain liable for the satisfaction of the debt, etc.”

4. The Subordinate Judge thought that, as the property now attached was part of the property included in the mortgage, it could not, by reason of the provisions of Section 99 of the Transfer of Property Act, be brought to sale under the attachment without further proceedings under Section 67 of the Act.

5. The learned District Judge has formed a different opinion. He thinks that, although the decree was not either in form or in substance such a decree as could be passed in an action brought under Section 67, still the action was, in fact, brought under that section, and that for that reason Section 99 did not apply to the case.

6. We think that the view taken by the Subordinate Judge is the correct one. The objects of Sections 65, 86, 88 and 99 of the Act are to prevent mortgagees from realizing their securities, except in the way prescribed by the Act, and unless the action in which it is sought to realize the security is one in which the procedure followed is that prescribed by the Act, we think it is within the provision of Section 99, and that the mortgaged property cannot be sold in it. We accordingly set aside the order of the District Judge, and restore so much of that of the Subordinate Judge as directed the case to be struck off, as the attached property cannot be sold in this execution proceeding. As, however, Section 99 does not provide that the mortgaged property shall not be attached, we do not restore so much of his order as directs that the property be released from attachment.

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