Ashutosh Rai Decree-Holder v. Babu Lal Jhungar Judgment-Debtor .

Coutts, J.:— This appeal arises out of an application for injunction to restrain the judgment-debtor from taking out money which is in the hands of the Land Acquisition Deputy Collector. The application has been refused and the decree-holder has appealed.

2. The facts of the case are, shortly, that Mouza Benipur which has an area of 600 bighas was mortgaged to the decree holder. He brought a suit on his mortgage and obtained a preliminary decree. Meanwhile 100 bighas of the mouza had been acquired for the Bengal Nagpur Railway Company and Rs. 2,000 as compensation, is now in the hands of the Land Acquisition Deputy Collector. The judgment-debtor has applied for permission to withdraw this amount in order to pay off another decree and it was in order to restrain him from doing this that the application for injunction was made.

3. I am unable to agree with the learned Subordinate Judge that the injunction should not be granted. Under section 73 of the Transfer of Property Act, “Where mortgaged property is sold through failure to pay arrears of revenue or rent due in respect thereof, the mortgagee has a charge on the surplus, if any, of the proceeds, after payment thereout of the said arrears, for the amount remaining due on the mortgage,” and it has been held, both in the Madras High Court and in the Calcutta High Court, that this section applies where land is sold under the Land Acquisition Act. I need only refer to the cases of Venkala Viraragavayyangar v. Krishnasami Ayyangar(1), Jatuni Chowdhnrani v. Amir Krishna Saha(2) and Debendra Nath Sen v. Mirza Abdul Samed Seroji(3). An opposite view was taken by Aikman, J., in the case of Basa Mal v. Tajammal Husain(4). But this is a decision of a Single Judge and has been expressly dissented from in the case of Jatuni Chowdhurani v. Amar Krishna Saha.

4. I agree with the view of the law expressed in the cases to which I have referred. I would accordingly set aside the decision of the learned Subordinate Judge and would decree this appeal with costs.

5. Sultan Ahmed, J.:— I agree.

6. Appeal decreed.