Raja Ramranjan Chakrabutty v. Indra Narayan Das

Maclean, C.J:— I think both the Subordinate Judge and the District Judge are right in this case. The only matter that presses upon me in connection with it is a decision of the Allahabad High Court, Sheo Prasad v. Behari Lal, a decision which is entitled to every respect. Unfortunately I am unable to agree in the conclusion of the learned Judges in that case. I agree with them to this extent that the question raised in the present case depends upon the construction of secs. 89 and 90 of the Transfer of Property Act. The application here is for a personal decree under sec. 90 of that Act. Apparently, a personal decree can only be obtained, as provided in that section, “when the nett proceeds of any such sale are Insufficient to pay the amount due on the mortgage.” The expression “such sale” evidently refers to a sale under sec. 89. Sec. 89 says that if payment is not made, the Plaintiff may apply to the Court “for an order absolute for sale of the mortgaged property.” Primâ facie, that means the whole of the mortgaged property. Then it goes on to say: “The Court shall then pass an order that such property or a sufficient part thereof be sold.” In the present case, neither the whole of the mortgaged property nor a sufficient part of it has been sold, as is contemplated by sec. 89. Therefore, the condition precedent to enable the Court to pass a decree under sec. 90 has not been complied with. This is what has happened. The mortgagees released substantial portions of the property originally mortgaged, and the purchasers of those portions from the mortgage-debt. The Subordinate Judge says that was done without the consent of the mortgagors, and there is nothing to show that they acquiesced in it. I agree with the Allahabad High Court, in holding that a mortgagee, if he likes may release a portion of the mortgaged property from the debt; but he cannot do so to the detriment of the mortgagor, so as to impose upon him a personal liability to which otherwise he would not be subject. There is nothing to show that if the whole of the mortgaged properly had been sold, it would not have been sufficient to pay off the whole mortgage-debt; nor is there anything to show that the amount which the purchasers of the other portions of the property paid to the mortgagee was the full and true value of the property which they purchased. The mortgagor may claim to have the mortgaged property sold before a decree can be passed against him under sec. 90 of the Transfer of Property Act.

For these reasons I think that the view taken by the Courts below is correct; and the appeal must be dismissed with costs.

Geidt, J.— I agree.

N.G

Appeal dismissed.