JUDGMENT
Richards, J.
1. This appeal arises out of an application made under Section 90 of the Transfer of Property Act. A decree was obtained under Section 88 of that Act directing sale of eleven plots of land. This decree was subsequently made absolute. The decree then went to the Collector for sale of the property. Four out of the eleven plots were sold, and the decree was thereby in part satisfied. The Collector then found that some of the remaining plots, although mentioned in the decree as fixed rate holdings, were in fact occupancy holdings, and that with regard to the other plots the judgment-debtors bad no interest therein. Consequently no further sales were held under the mortgage decree. The decree-holder then applied under Section 90 of the Transfer of Property Act for a decree that the balance of the debt might be recovered from the defendants otherwise than out of the mortgaged property. This application was met by objections that part of the mortgaged property was left unsold, the objections of course referring to the plots which I have just now referred to as having been found by the Collector to be unsaleable. The decree-holder answered the objections of the judgment-debtors by alleging that all the property which was capable of being sold had been sold (see paragraph 1 of the decree-holder’s petition dated 11th February 1905 and filed on the 1st of April 1905). It has not been contended here that any of the property not sold was capable of being sold. But the respondents contend that whether it was saleable or not, the Court executing the decree was bound to put it up for sale, and that until that had been done, the decree-holder was not entitled to obtain an order under Section 90. There is no doubt that a very strict interpretation was at one time given to Section 90. In one case Muhammad Akbar v. Munshi Ram Weekly Notes, 1899, p. 208 a Bench of this Court held that where a mortgagee had obtained a decree for the sales of the mortgaged property and where a prior mortgagee had also obtained a decree for sale of the same property, and in execution of the latter decree the property was sold, the second mortgagee was not entitled to apply under Section 90 even though the nett proceeds of the sale of the property were insufficient to satisfy the first mortgage. This case is distinguishable from the present case. There had been no sale at all in execution of the decree obtained by the second mortgagee. If, however, the principle laid down there is applicable to the present case, I do not feel bound to follow the decision, because I consider that there are authorities of at least equal authority, in which a contrary view has been taken. The decree-holder in this case dearly showed by the answer he put in to the judgment-debtors objections that he abandoned all claim against the mortgaged property other than that part of it which had been actually sold, and Mr. Gokul Prasad has set at rest any question upon this point by expressly abandoning in open Court on behalf of his client any claim against the mortgaged plots which have not been sold. In the case of Sheo Prasad v. Behari Lal (1902) I.L.R., 25 All., 79 it was held that a decree under Section 90 might be had, although the mortgagee had not included in his suit or caused to be sold the entire of the mortgaged property. It is said in the judgment, at page 82: “It seems to us that great hardship might be entailed on a mortgagee if he could not relinquish his claim to a part of the property purporting to be comprised in his mortgage except on the penalty of losing. his right under Section 90, if he found that it was to his advantage to do so. For example, it might be that a portion of the property was heavily incumbered. It might also be that the mortgagor’s title to a portion of the property was in dispute. In either of these cases the result of endeavouring to sell property so incumbered or the portion the title to which was in dispute might entail heavy expenses and protracted litigation.” These remarks appear to me to apply with equal force to the present case. “When the decree-holder found that a portion of the property was of a nature that could not be legally sold, I can see no reason why he should not abandon his claim against it, nor do I see any good reason, or common sense in forcing the Collector to go through the farce of putting up to sale property which he and the decree-holder believed could not be legally sold. In the case of Ghafur Hasan Khan v. Muhammad Kifayat-ullah Khan (1905) I.L.R., 28 All., 19 it was held, following the case I have just referred to, that where a mortgagee obtained a decree for the sale of the entire mortgaged property, but on asking for an order absolute relinquished his claim against a part of the mortgaged property, he was entitled, When the proceeds of the property sold proved insufficient to satisfy the decree, to obtain a decree under Section 90. In the case of Kedar Nath v. Chandu Mal (1903) I.L.R., 26 All., 25 it was held that where a decree and an order absolute for the sale of the entire of the mortgaged property had been passed, but before sale a third person succeeded in establishing his title to half of the mortgaged property, the decree-holder was entitled to an order under Section 90, although there had been no sale or attempt at sale of that part of the property to which the mortgagor’s title had proved defective. There can be no doubt that if a mortgagee chooses to abandon all claim against the mortgaged property, he is entitled, independently altogether of Section 90 of the Transfer of Property Act, to a personal decree, It seems only reasonable that, on bringing a mortgage suit, the plaintiff before or after a decree for sale, should be allowed to abandon his claim against; a portion of the mortgaged property if he chooses to do so. The cases which I have cited seem to me to establish that on the true construction of the provisions of the Transfer of Property Act a mortgagee is entitled at any stage to abandon his claim against any portion of the mortgaged property and then obtain a decree under Section 90 for any balance due after crediting the amount realized by sale of the property actually sold. I allow the appeal, set aside the orders of both the Courts below, and remand the execution case to the Court of first instance through the lower appellate Court with directions to readmit the same to the file of pending cases and proceed with it according to law. Costs will abide the result.
