Basa Mal And Others (Decree-Holders) v. Tajammal Husain (Judgment-Debtor).

Aikman, J.:— The appellants in this case obtained a decree for the sale of certain landed property in enforcement of a mortgage on it. Before the decree was executed a portion of the property was taken up by Government for a railway now in the course of construction, and compensation was awarded for it. The decree-holders applied to the lower Court to attach the amount of compensation in the hands of the Collector in execution of their decree for sale. Their application was refused, and they appeal to this Court.

In my opinion, the learned Subordinate Judge was right. When land is taken up by Government, public notice is given thereof, and notification is made that “claims to compensation for all interests in such land may be made to the Collector” (s. 9 of Act No. X of 1870). It was open to the decree-holders to put in a claim under this section. Having failed to do so, I do not think that they are entitled, by force of a decree prepared under s. 88 of the Transfer of Property Act, to attach the amount of compensation which has been awarded by the Collector to the mortgagor. They may proceed against the remainder of the property which has not been taken rip, and, if the proceeds of the sale of that property prove insufficient to discharge the amount due under the decree, they may apply to the Court under s. 90 for a decree for the balance.

The appeal fails and is dismissed with costs.

Appeal dismissed.