JUDGMENT : BANERJI, J. 1. This is an appeal from a decree made by the Court below in favour of the respondent under section go of the Transfer of Property Act, 1882. 2. The facts are these:— The respondent, Phulman Rai, owned a 5 anna 4 pie share in the village Cuattarpur which, together with a share in another village, he mortgaged to one Danyar Singh. He mortgaged some other property to one Gajraj. In order to pay off these debts he sold the share in Chhatarpur to the appellants by two sale-deeds executed on the 2nd of August, 1895. The first sale-deed related to a 3 anna 7 pie share,’ and, the amount of consideration for this sale was Rs. 5,000. Out of this amount he left in the hands of the purchasers Rs. 2,396, for payment to Gajraj. The sale-deed provided that if the purchaser omitted to pay Gajraj, and the vendor himself had to pay to him the amount due to him, the vendor would be entitled to recover the said amount with interest and costs., The purchasers made default in payment. 3. Thereupon the vendor, Phulman Rai paid off Gajraj and brought a suit against the purchasers, the appellants before us, for the unpaid balance of purchase money and interest thereon and claimed a charge on the property sold. As that property was subject to the mortgage in favour of Danyar he was made a party to the suit upon objection of the purchasers, and on the 22nd March, 1900, the Court made a decree to the effect that Phulman Rai, the plaintiff, should first discharge the amount of Danyar's mortgage and then sell the property sold by him for the recovery of the amount so paid as well as of the amount due to him. This decree was affirmed in appeal, and Phulman Rai paid the amount due to Danyar, obtained an order for sale under section 89 of the Transfer of Property. Act, and caused the property to be sold by auction. The proceeds of the sale having proved insufficient to pay the total amount due to him, he has now applied under section 90 of the Act for a decree for the balance. 4. Act, and caused the property to be sold by auction. The proceeds of the sale having proved insufficient to pay the total amount due to him, he has now applied under section 90 of the Act for a decree for the balance. 4. That the balance is legally recoverable from the defendants orherwise than out of the property sold is manifest from the terms of the sale-deed which I have set forth above, Further an unpaid vendor has not only a charge on the property sold for the unpaid purchase money and interest thereon under clause (b), sub-section (4) of section 55 of the Transfer of Property Act, but he has also a personal remedy against the buyer. This appears from the decision of the Bombay High Court in Chunni Lal v. Bai Jethi, [1897] I.L.R., 22 Bom, 846 and of this Court in Har Lal v. Muhamdi, [1899] I.L.R., 21 All., 454. See also Dart on Vendors and Purchasers, Vol. II 1248 (6th edition). Consequently he is entitled to recover the balance due to him otherwise than out of the property sold. It is, however, contended on behalf of the appellants that the question of the respondent's right to recover the money due to him from the vendees personally has become us judicata in consequence of a decision made by the Court on the point in the original suit, and that section 90 of the Transfer of Property Act is not applicable to the case of the holder of a charge. 5. As regards both these contentions reliance is placed on behalf of the respondent on the following provisions of section 100 of the Act:— “All the provisions hereinfore contained as to a mortgagee instituting a suit for the sale of the mortgaged property shall, so far as may be, apply to the person, having such charge.” It is manifest from this provision that a’ person holding a charge is entitled to bring a suit for the sale of the property subject to the charge, The decree in such a suit must be a decree in terms of section 88 and an order absolute must be obtained under section 89, if the decree-holder wishes to proceed against the property: As in the case of a mortgage, so in the case of a charge, the decree should in the first instance be confined to a decree nisi for sale. No question, therefore, of the personal liability of the defendant can arise or be determined at the stage of the suit in which decree under section 88 is passed and any decision which may have been given on that question at that stage will not have the effect of res judicata. This was held in Musaheb Zaman Khan v. Inayat-ul-lah, [1892] I.L.R., 14 All, 513. The learned Judges (EDGE, C.J., and BLAIR, J.) who decided that case, observed:— “In our opinion the more correct way of drawing up a decree in a suit for sale on a mortgage would be to confine the decree for sale, i.e., the first decree to be passed, to a decree under section 88 against the mortgaged property, and that any subsequent relief to which, after that decree had been executed, it might appear that the plaintiff was entitled, should stand over for a decree under section 90. In our opinion section 13 of the Code of Civil Procedure would not apply to an application under section 90 for a decree, no matter whether the plaintiff had or had not claimed originally in his suit subsequent relief, or whether if claimed, such subsequent relief had been allowed or disallowed by the Court when making the decree under section 88, the time for adjudication on the claim for subsequent relief not arriving until the decree under section 88 had been exhausted.” This ruling disposes of the plea of res judicata raised on behalf of the appellants. If section 90 applies, the Court will have to determine, upon an application being made for a decree under that section, whether the balance is legally recoverable from the person and property of the defendant other than the property sold, although when making the decree under section 88 the Court may have refused to grant relief against the person and other property of the defendant. 6. This leads us to the main question in the case, namely, whether section 90 applies to the case of a charge. I am of opinion that in this respect there is no difference between the remedies of a mortgagee having the right to sell and of the holder of a charge entitled to enforce the charge. 6. This leads us to the main question in the case, namely, whether section 90 applies to the case of a charge. I am of opinion that in this respect there is no difference between the remedies of a mortgagee having the right to sell and of the holder of a charge entitled to enforce the charge. By section 100 all the provisions of the Act relating to mortgagee instituting a suit for sale apply to the holder of a charge, so that whatever remedies such a mortgagee has are also available to the holder of a charge. I cannot agree with Mr. Agarwala, the learned Counsel for the appellant, that the holder of a charge has only the right of instituting a suit for the sale of the property subject to the charge. He has, as I have already said, all the remedies which are open to a mortgagee who institutes a suit for sale. What are those remedies? The mortgagee is entitled to a decree under section 88. If the mortgagor does not pay the mortgage money declared by that decree within the time fixed, the mortgagee may obtain under section 89 an order absolute for the sale of the mortgaged property. If the proceeds of such sale are insufficient to pay the amount due on the mortgage and he is entitled to recover the balance from the defendant otherwise than out of the property sold, he has the right to obtain a decree for the balance under section 90. It is conceded that having regard to the provisions of section 100 the holder of a charge is entitled to a decree under section 88 and also to an order for sale under section 89 and to sell the property which is subject to his charge. It is said that his remedies stop there. I am unable to find any reason in law and equity why his remedies should be held to have become exhausted as soon as a sale has taken place, although as a result of the sale a large balance may still be due to him. In the absence of clear legislation to that effect I do not feel myself justified in placing such a narrow and inequitable interpretation on the provisions of section 100. In the absence of clear legislation to that effect I do not feel myself justified in placing such a narrow and inequitable interpretation on the provisions of section 100. As I read that section it confers on the holder of a charge all the rights and remedies available to the holder of a mortgage who is entitled to sue for sale. As observed by STRACHEY, C.J., in Harlal v. Muhamdi, [1899] I.L.R., 21 All., 454, 457 “under section 100 of the Transfer of Property Act, all charge-holder are put as nearly as possible on the same footing as a mortgagee.” One of the remedies given to a mortgagee to whom a balance remains due after the sale of the mortgaged property is to apply for and obtain a decree under section 90. Had the legislature intended that the same remedy should not be open to a charge-holder, we should have expected it to say so in distinct and clear terms in section 100. The section, it is true, makes applicable to the holder of a charge, the provisions of the Act applicable to a mortgagee instituting a suit for the sale of the mortgaged property, and does not in terms refer to any other property, but, as I have already pointed our, one of the provisions applicable to such a mortgagee is that he may obtain a decree under section 90. The only limitation which in my opinion section 100 imposes is that the mortgagee, to whose case that of a charge-holder is analogous, must be a mortgagee who can bring a suit for sale and not a usufructuary mortgagee or a mortgagee by conditional sale. In my judgment the holder of a charge is, like a mortgagee suing for sale, entitled to ask for and obtain a decree under section 90, provided of course that the balance due to him is legally recoverable from the defendant personally. I can conceive of no reason for the legislature with-holding from a charge-holder the remedy afforded by section 90. There may be charge-holders who are not entitled to a personal remedy against the person whose property is subject to the charge, for example, annuitants and Hindu widows and other persons entitled to maintenance. But these persons are not legally entitled to recover the balance otherwise than out of the property and are not therefore entitled to a decree under section 90. But these persons are not legally entitled to recover the balance otherwise than out of the property and are not therefore entitled to a decree under section 90. The respondent, however, is not a person of that description. As an unpaid vendor he has not only a charge on the property sold but he has also a personal remedy against the vendees. If section 90 be held to be inapplicable to his case he would have no means of enforcing the personal remedy. Since he holds a charge and the charge must be enforced as a mortgage, he must bring a suit for sale under section 88. In such a suit although he may properly claim a personal decree against the defendant, the Court in making its decree under section 88 should confine the decree to one for sale of the property. This was held by this Court in the case of Musaheb Zaman Khan v. Innyat-ul-lah, [1892] I.L.R., 14 All, 513 to which I have already referred and which has been followed in other cases. If section 90 be held to be inapplicable to his case he would be wholly without remedy for the recovery of any balance which might remain due to him after the sale of the property, although the defendants were personally liable for it. I do not believe such a state of things was contemplated by the legislature. I find that in England the decree made in a case like this directs the sale of the property for satisfying the amount due and further directs that “the deficiency, if any, be paid by the purchaser.” (Dart on Vendors and Purchasers, Vol. II, page 1248, 6th edition). The direction as to the recovery of the deficiency should, according to the Transfer of Property Act as interpreted by this Court, be contained in a decree under section 90 and not in the decree under section 88. It seems to me that the Indian Legislature did not intend to, and did not in fact depart from, the English rule on the subject. I accordingly hold that section 96 is applicable to the holder of a charge and that the Court below was right in making a decree under that section. I would dismiss the appeal with costs. RICHARDS, J. I have the misfortune to differ from the judgment of my learned colleague. I accordingly hold that section 96 is applicable to the holder of a charge and that the Court below was right in making a decree under that section. I would dismiss the appeal with costs. RICHARDS, J. I have the misfortune to differ from the judgment of my learned colleague. I am of opinion that section 100 of the Transfer of Property Act does not enable the owner of a charge as distinguished from a mortgagee, to obtain a personal decree under section 90 against the owner of the property charged, even where there is a balance recoverable from the defendant otherwise than out of the property sold. In the case of a mortgage the personal liability of the mortgagor arises always from the mortgage itself, and it is very equitable and convenient that the Court enforcing the payment of the mortgage debt by sale of the mortgaged property should have the power conferred by section 90 to pass a summary decree against the mortgagor when the mortgage security has proved insufficient. In the case of a charge, the owner of the properly charged is more often than not, under no personal liability at all. When there is a personal liability, such liability need not necessarily arise out of the document or circumstances which give rise to the charge. For example, a man may become the owner of property subject to a charge and also under some collateral and independent agreement be personally liable jointly with several others for the payment of the charge. In such a case I am by no means sure that it would be equitable or convenient that the Court should proceed to pass a summary decree under section 90. For the purpose of construing section 100 of the Transfer of Property Act, we are not, I think, entitled to take into consideration the particular facts of the present case. In such a case I am by no means sure that it would be equitable or convenient that the Court should proceed to pass a summary decree under section 90. For the purpose of construing section 100 of the Transfer of Property Act, we are not, I think, entitled to take into consideration the particular facts of the present case. Having regard to the terms of the sale-deed of the 2nd August, 1895, and the subsequent action of the plaintiff I do not think that it is quite clear that his position is the position of an unpaid vendor, but in the view I take this question is immaterial, In my opinion the words in section 100 “all the provisions hereinbefore contained as to a mortgagee instituting a suit for the sale of the mortgaged property” mean all provisions dealing with a sale of the mortgaged property. This, I think, is the natural meaning of the words. To hold that the words give to the owner of a charge all the rights of a mortgagee, who was entitled to sue for sale would be to give to the section a strained and unnatural meaning the result of which might be very far reaching. In by far the greater number of cases of charges, the incorporation of section 90 would be quite inapplicable inasmuch as there would be no ‘personal liability, and if the legislature intended to incorporate section 90 (which is not a sale section) it is strange it did not do so expressly as it did in the case of sections 81 and 82, For these reasons I think that the Court below was wrong in passing a decree under section 90, and that the present appeal should be allowed. BY THE COURT Under the provisions of section 575 of the Code of Civil Procedure, the appeal is dismissed and the decree of the Court below is affirmed with costs.