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

Calcutta High Court
Khitish Chandra Sanyal vs Hari Charan Dass And Anr. on 30 November, 1909
Equivalent citations: 4 Ind Cas 398
Bench: Caspersz, Doss


1. On both the contentions raised in this second appeal, we think the learned District Judge has fallen into manifest error. He has directed the decree-holder appellant to proceed against the whole of the mortgaged property, in one and the same application, and he has exonerated the defendant No. 2 from liability under the mortgage-decree.

2. Section 89 of, the Transfer of Property Act provides that “the Court shall pass an order that the mortgaged property or a sufficient part thereof be sold.” The decree-holder by applying for the sale of a part of the mortgaged premises undergoes a certain amount of risk, but in the absence of any evidence that his mortgage dues would not be realised by the sale of a part only of the property, we think the order directing him to proceed against the whole cannot be justified. A question may arise in this connection when a decree is applied for under Section 90 of the Transfer of Property Act, if that procedure is eventually followed by the decree-holder. As to that, however, we say nothing at present.

3. Then, with regard to the second direction of the learned District Judge, we observe that the case is only one of construction of the decree. The mortgage suit was not contested by the defendant No. 1, it was contested by the defendant No. 2, and against him there is the order outstanding that the suit is decreed,that the defendant is to pay costs of the litigation, and that the mortgaged property be sold. Such a decree undoubtedly had the effect of binding the interest of the defendant No. 2 in the property, for if he had no interest in the whole or part of the mortgaged property, he would not have been made a party to the suit nor would the suit have been decreed against him.

4. The appeal is allowed and the decree-holder is permitted to proceed in accordance with law against a part of the mortgaged property and against the interest of the defendant No. 2 therein. He may proceed against both the defendants Nos. 1 and 2 in terms of his application.

5. The decree-holder is entitled to his costs of this appeal, three gold mohurs.

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