JUDGMENT : BANERJI, J. 1. This is an appeal against the order of the Subordinate Judge of Farrukhabad, dismissing the application of the appellant for a decree under section 90 of the Transfer of Property Act. The only ground upon which the application was dismissed is, that the decree-holder mortgagee has not caused the whole of the property comprised in his mortgage and ordered to be sold by the decree, under section 88 and a subsequent order absolute under section 89, to be actually sold by auction. What happened was this:— After the decree and the order absolute had been passed the decree-holder made an application for execution of the decree, As part of the property was zamindari property and was ancestral within the meaning of the notification of Government, execution of the decree was transferred to the Collector. Everything necessary for the execution of the decree was done, and the 20th of September, 1900, was fixed for the sale of the zamindari property by auction. On the 31st August, 1900, Baqar Sajjad, one of the judgment-debtors to whom, it appears, the whole of the zamindari property had passed under a decree obtained in 1898, executed sale deed of it to one Khushal Singh for a consideration of Rs. 8,500. This amount was paid to the decree-holder, and the Court was informed that a sale of the property had taken place and the decree had been satisfied to the extent of Rs. 8,500, and that the property, which had been advertised for sale, need no longer be sold. Thereupon the Collector returned the papers to the Civil Court which had transmitted them to him. On the 9th March, 1903, the decree-holder applied to the Civil Court for the sale of a shop which was the only other property comprised in the mortgage. He admitted the previous sale of the 31st August, 1900, and gave credit for the amount which had been paid to him on account of the decree and asked for the sale of the shop for recovery of the balance. The shop was sold but the proceeds of the sale were insufficient to satisfy the decree. 2. Thereupon he made the present application for a decree under section 90, with the object of proceeding against property, other than the property comprised in the mortgage. The shop was sold but the proceeds of the sale were insufficient to satisfy the decree. 2. Thereupon he made the present application for a decree under section 90, with the object of proceeding against property, other than the property comprised in the mortgage. The application was resisted inter alia on the ground that a sale of the zamindari property had not been effected by the Court. This objection found favour with the Court below and the question we have to determine is whether there was a substantial compliance with the provisions of section 90. That section provides that when the net proceeds of a sale, ordered by the Court under section 89, are insufficient to pay the amount due on the mortgage, if the balance is legally recoverable from the defendant, otherwise than out of the property sold, the Court may pass a decree for such sum. In this case the shop which the decree had ordered to be sold has been sold. The zamindari property has also been sold though not through the Court. The reason why the sale did not take place through the Court was, that with the consent of the decree-holder, the judgment-debtor, who was at the time interested in the property, executed a sale-deed of the property and paid over the whole of the proceeds of the sale to the decree-holder, in part satisfaction of the decree, He recites in the sale-deed that a forced sale would not realise such value as a private sale would do, and that for this reason he sold the property and left the proceeds of the sale in the hands of the purchaser in order that the purchaser might pay them over to decree-holder and free the property from liability under the decree. This was done, and in fact the parties themselves did what they could have done under the provisions of section 308 of the Code of Civil Procedure. It is not denied, that if in accordance with the provisions of that section, a private sale had taken place with permission of the Court that would not have prevented the decree-holder from obtaining a decree under section 90. This case is not different in substance from a case in which a sale has taken place strictly in compliance with the provision of section 305. This case is not different in substance from a case in which a sale has taken place strictly in compliance with the provision of section 305. Here, the property ordered to be sold was in fact sold by consent of parties and the fact of the sale was certified to the Court, and the proceeds of the sale were applied to partial discharge of the amount of the decree. Under these circumstances we think, a substantial compliance with the provisions of section 90 has taken place, and the decree holder is entitled to a decree under section 90, if the balance is recoverable otherwise than from the mortgaged property. The Court below was in our judgment wrong in dismissing the application of the decree-holder simply on the ground that a sale had not been effected by auction, We need not express any opinion on the other questions raised by the judgment-debtors. They will have to be determined by the Court below, We accordingly decree the appeal, set aside the order of the Court below with costs and remand the case under the provision of section 562 of the Code of Civil Procedure for disposal according to law. The costs in this Court will include fees on the higher scale.