1. This second appeal relates to the execution of the decree in O.S. No. 214 of 1906 in the District Munsif's Court of Walluvanad confirmed on appeal by the District Court of Calicut. The decree in the suit which was to redeem a kanom demise granted by the plaintiff to the defendants run in these terms : -
"This Court doth order and decree that upon payment by the plaintiff into court to the credit of the defendants 1 and 2 within 6 months from this date of the kanom amount Rs. 28-9-2 and value of improvements Rs. 157-13-0, less arrears of revenue Rs. 6-7-1, court costs Rs. 17-9-8, and future rent from 108a at 20 paras of paddy worth 8 annas a para and 4 annas 7 pies a year until execution of the decree, the defendants do deliver up to the plaintiff, or to such person as he may appoint in his behalf, all documents in their possession or power relating to the plaint mortgaged property and described in the schedule hereunto annexed and do retransfer the same to the plaintiff free from the mortgage and from all encumbrance created by the defendants or by any person claiming under them and put the plaintiff into possession of the same and that in default of payment of the amount due as aforesaid on or before the date specified as above the said mortgaged property or a sufficient portion thereof be sold and the proceeds of such sale after defraying there out the expenses of the sale, be paid into court and applied in payment of the amount due as aforesaid and the balance, if any be paid to the plaintiff or other person entitled to receive it."
The decree was thus in accordance with
Section 98 of the Transfer of Property Act which directs that in a suit -for redemption the court shall, in cane of non-payment of the redemption money within the time fixed, order a sale unless the mortgage be by conditional sale. The plaintiff-mortgagor did not deposit the money due according to the decree within the time fixed. He afterwards applied to the court in execution for an order directing the sale of the mortgaged property. Both the Lower courts have dismissed the petition, holding that under
Section 93 of the Transfer of Property Act only the mortgagee, and not the mortgagor, is entitled to apply for an order for the sale of the property if the mortgagor does not make payment of the redemption amount as provided by the decree, The decree-holder has preferred this second appeal.
2. It is contended before us that the mortgagor is also entitled, in the circumstances narrated above, to apply for an order directing the sale of the mortgaged property. The case has to be decided according to the provisions of the Transfer of Property Act, the decree having been passed while the provisions of that Act with respect to mortgage decrees were in force. There is not much judicial authority on the question we have to decide. In Vedapuratti v. Vallabha Valiya Rajah (1901) I.L.R. 25 M. 300 there is a dictum of Sir V. Bhashyam Aiyarngar J. (on page 315) in the appellant's favour. The learned Judge observes :
"Notwithstanding that
Section 93, Transfer of Property Act, deals only with a mortgagee's application for an order for sale, it would, on principle, seem that there could be no objection to the mortgagor applying for the execution of the decree under Section 93 and obtaining an order for the sale of the mortgaged property, the sale of which has been decreed under the last paragraph of Section 92 in case payment is not made on or before the date fixed in the decree for redemption."
The appellant's pleader cites the opinion of Dr. R.B. GHOSE and Messrs. SHEPHARD and BROWN that the
Transfer of Property Act is in opposition to this dictum. In
Vallabha Valiyaraja v. Vedapuratti (
1895) I.L.R. 19 M. 40 it appears to have been assumed by Parker J. at page 47 and Shephard J. at page 49, that the mortgagee alone could apply for sale where a decree directing a sale has been passed under Section 92 of the Act in a suit for redemption. But the question did not arise for decision in that case.
3. On a careful examination of the provisions of the Act we have come to the conclusion that the dictum of Sir V. Bhashyam Aiyangar J. is right and that we should follow it. Section 93 makes it imperative on the court to pass a decree for sale in "very suit for redemption unless the mortgage be by conditional sale. A decree for foreclosure can be passed only in the case of conditional mortgages and English mortgages. The intention of the statute appears clearly to be that there should be no foreclosure in the case of simple and usufructuary mortgages. Although the plaintiff's right to redeem is conditional upon his paying the amount due by him under the mortgage, ha is not to be foreclosed if he does not fulfill the condition, and the consequence of his not fulfilling it is that the property should be sold. The ordinary rule in the case of conditional decrees is, no doubt, that where a person, who has obtained a judgment upon condition, does not perform or comply with such condition, he should be considered to have waived or abandoned the judgment. (See Order XLII, Rule 2, of the English Judicature Act). But this rule cannot be applied to decrees for redemption under the Transfer of Property Act as the legislature has expressly provided that the result of the non-fulfillment of the condition is to be something else, namely, that the mortgaged property is to be sold. In England formerly a gale could not be directed in an action by the mortgagor for redemption See Chancery Amendment Act, 15 and 16 Victoria, Cap. 86, Section 48. But Section 15 of the Conveyancing Act, 1881, entitles the mortgagor to an order for sale in an action brought by him, either for redemption alone, or for sale alone, or for sale or redemption in the alternative. When a sale is not ordered a decree for redemption would include a clause dismissing the suit on the plaintiff's failure to pay the mortgage amount to the defendant within the time fixed. See Harmer v. Priestly (1853) 16 Beav. 569 S.C. 22 L.J. Ch. 104; SETON on Decrees, Volume. II, 1040, No. 11, 4th Edition. Such a dismissal of the action would operate as a decree of foreclosure because the mortgagor cannot afterwards file another bill for the same purpose. See Marshall v. Shrewsbury (1875) L.R. 10 Ch. 250; Cholmley v. Countess of Oxford (1741) 2 Atkyns, 267; In man v. Waring (1850) 3 De. G. & Sm. 729 S.C. 64 E.R. 680; Parker v. Housefield (1834) 2. Myl. & K. 419, PEMBERTON on Judgments, p. 422. The Transfer of Property Act has deliberately omitted to provide that a suit for redemption should be dismissed where the mortgagor fails to pay the mortgage amount and expressly lays down that foreclosure is to be confined to cases of mortgage by conditional sale. The mortgagor's right of redemption can be destroyed only by a final order of foreclosure or sale. (Provisos to Sections 60 and 87, also Section 89). It could not have been intended that when he fails to pay the redemption amount the relationship of mortgagor and mortgagee should perpetually continue, unless the mortgagee should choose to apply for sale.
4. It has now been held by this court, agreeing with the Bombay High Court and reversing the former current of decisions, that after obtaining a decree for redemption the mortgagor cannot institute a second suit for the same purpose. - Vedapuratti v. Vallabha Valia Raja (1901) I.L.R. 25 M. 300 - although the Allahabad High Court, altering its own former views, is now of opinion that a second suit for redemption is maintainable - see Sita Ram v. Madho Lal (1901) I.L.R. 24 A. 44. There is, therefore, no way by which a mortgagor who has failed to deposit the mortgage money within the time fixed could enforce his tight of redemption except by making an application for site. As the decree directs that the property shall be sold there is no reason in principle why the plaintiff should not be entitled to apply to the court for the enforcement of the direction.
5. Mr. Vythianatha Aiyar, for the respondents, lays stress on the language of the second paragraph of Section 93 that the defendant may apply for an order that the mortgaged property be sold, and it is apparently this language that has influenced the opinion of the learned commentators on whom he relies. But it appears to us that the language was intended to indicate that though the plaintiff in the suit is the mortgagor and he would ordinarily be understood to be the decree-holder, the mortgagee-defendant is also entitled to apply for an order of sale. In Section 88 which deals with suits for foreclosure, it is provided that either the plaintiff, i.e., the mortgagee or the defendant, i.e. the mortgagor, may ask that a decree for sale should be passed in lieu of a decree for foreclosure. And Section 89 provides that either the plaintiff or the defendant may apply for an order absolute for sale in case the mortgagor fails to pay the mortgage amount. It is further contended that while the English Conveyancing Act expressly authorises the mortgagor in a redemption suit to ask for a decree for sale, the Indian Act does not do so, and that it is to be inferred from this difference between the two Acts that a mortgagor suing for redemption is not intended in India to have a right to apply for sale at any stage of the proceedings. But this difference does not affect the decision of the question before us. Mortgages in India, except the class called English mortgages, are not regarded as similar, in all respects, to mortgages in England. With respect to English mortgages Section 88, as already, pointed out, entitles a mortgagor to ask for sale when the mortgagee institutes a suit for foreclosure. The reason why no alternative provision for gale or foreclosure is made in Section 92 is that the Indian Law goes further than the English Law and provides that except in the case of mortgages by conditional sale and English mortgages there shall be a decree for sale only and not for foreclosure or dismissal of the suit, in the case of all suits for redemption. The result is that in the case of simple and usufructuary mortgages the mortgagor need not ask for an alternative decree for sale as the court can pass only a decree for sale in case of non-redemption, that in the case of English mortgages a decree for foreclosure will be passed in favour of the defendant-mortgagee in redemption suits and the mortgagor has apparently no right to ask for a decree for sale instead, and that in foreclosure suits, where the mortgage is an English mortgage the mortgagor-defendant may ask for a decree for sale in lieu of one for foreclosure but that he cannot do so where the mortgage is one by conditional sale. It is difficult to believe that the sale being the only course open where the mortgager does not pay the mortgage amount, the mortgagor was intended not to be entitled to apply for it as much as the mortgagee. In some cases the provision for sale may be as much for the benefit of the mortgagor as for the benefit of the mortgagee. So long as the mortgage subsists, which, as already pointed out, it would, unless the mortgagee obtains an order absolute for sale, the mortgagor may not be able to dispose of his property by sale to third parties; while, if the property be sold by the court, he would be entitled to the sale proceeds after discharging the charges on the property. Where the decree is imperative there is no reason why the decree should not be regarded as passed for the benefit of all the parties to the suit. Now is there any reason for holding that any of the parties who would be benefited by the sale cannot apply for the enforcement of the decree? We ought perhaps to observe that in Order 34, Rule 5, in the present Civil Procedure Code, corresponding to Section 89 of the Transfer of Property Act, the provision is that in case of non-payment by the mortgagor, the court shall "on application made in that behalf the plaintiff" pass an order absolute for sale, although Rule 4(2) enacts that a decree for sale may be passed at the instance of the mortgagor as well as of the mortgagee. It is difficult to say that it was intended that the mortgagor who can get a decree for sale passed cannot apply for the execution of such decree. It is, however, unnecessary to consider this question further.
6. We are of opinion, for the foregoing reasons, that the order of the lower court dismissing the plaintiff's application cannot be supported and we reverse these orders and remand the execution petition to the court of first instance for disposal according to law. The costs of this appeal will abide the result.