JUDGMENT : STANLEY, C.J.:— From the view which we take of this case it is unnecessary for us to determine the main question which has been discussed before us and upon which our learned brothers BANERJI and RICHARDS differed. If it were necessary to determine that question, we should have difficulty in resisting the forcible reasoning to be found in the judgment of our brother BANERJI. It appears to us, however, that upon another point the appeal must be allowed. The facts of the case appear in the report of it in the Weekly Notes for 1905, page 144[And also 2 A.L.J.R., 379.]. The original suit was brought by the plaintiff to recover unpaid purchase money by sale of the purchased property. A number of defences were raised by the defendant and issues knit thereon. Amongst others there was the following issue: “Whether the plaintiff can realise the whole money he paid to Danyar from the defendant?” Danyar was found to be a prior mortgagee of the property, and in the suit* the defendants raised the objection that the plaintiff was bound to discharge the amount of Danyar's mortgage before he could sell the property. This contention was allowed and Danyar was made a party to the suit, and in the decree the plaintiff was ordered to pay the amount due to Danyar and then sell the property for the recovery of the amount so paid as well as of the amount due to himself. The following was the finding in regard to the personal liability of the defendants:—” The defendants 1 and 2 (i.e., the appellants) cannot either personally or their other properties be held liable for any part of the amount claimed. The property sold to them can alone be liable.” This is a clear and unambiguous finding and no objection was taken in respect of it, and the decree passed in favour of the plaintiff was affirmed in appeal. The proceeds of the sale directed under section 89 of the Transfer of Property Act having proved insufficient to satisfy the plaintiff's claim, he instituted the suit out of which this appeal has arisen for a decree under section 90 of the Transfer of Property Act for the balance due to him. The proceeds of the sale directed under section 89 of the Transfer of Property Act having proved insufficient to satisfy the plaintiff's claim, he instituted the suit out of which this appeal has arisen for a decree under section 90 of the Transfer of Property Act for the balance due to him. This suit was resisted on, amongst others, the ground that the questions of the plaintiff's right to recover the money from the vendees personally was decided in the original suit and was res judicata. Mr. Justice BANERJI did not accede to this contention holding that no question of the personal liability of the defendant could arise or be determined at the stage of the suit in which a decree under section 88 was passed and that any decision which might have been given on that question at that stage would not have the effect of res judicata. As supporting this view he relied upon the decision in the case of Musahib Zaman Khan v. Inayat-ullah, [1892] I.L.R., 14 All., 513., Mr. Justice RICHARDS, as he has informed one of us, did not consider or express any opinion upon this question. 2. We are unable to agree in the view so taken by our learned brother. In the case upon which he relied, the plaintiff obtained a decree under section 88 of the Act to which we have referred, which was executed under section 89 of the same Act, but the proceeds of the sale proving insufficient to satisfy the debt, the decree-holder applied for the execution of his decree under section 88 against the other property of the judgment-debtor, but that application was rejected. He then applied for a decree under section 90, and to this the judgment-debtors objected that in as much as the decree-holder in his plaint had asked for relief over against non-hypothecated property and that prayer had not been granted, his claim for a decree under section 90 was res judicata. He then applied for a decree under section 90, and to this the judgment-debtors objected that in as much as the decree-holder in his plaint had asked for relief over against non-hypothecated property and that prayer had not been granted, his claim for a decree under section 90 was res judicata. It will be observed that the application which was rejected in that case was an application under section 88 and not an application under section 90, and the Court merely held that “the time for making an application under section 90 and for the Court making a decree under that section, does not arrive until the remedies under sections 88 and 89 have been exhausted.” In the course of their judgment, EDGE, C.J., and BLAIR, J., 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, that is, 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 exe cuted, it might appear that the plaintiff was entitled, should stand over for a decree under section 90,” and they further say, “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 Ms suit subsequent relief, or whether, if claimed, such subse quent relief had been allowed or disallowed by the Court when making the decree under section 88, the time for adjudicating on the claim for subsequent relief not arriving until the decree under section 88 had been exhausted.” We see no reason to disagree with this view, provided that the question of the liability of a defendant to satisfy a decree other than out of the property the subject-matter of charge has not been considered and determined at the trial of the original suit, but if this question has already been the subject of determination at the former trial, the rule is in our opinion too broadly stated. In the case of Musahib Zaman Khan v. Inayat-ullah the question as to the liability had not been determined. In the case of Musahib Zaman Khan v. Inayat-ullah the question as to the liability had not been determined. The decree-holder had no doubt in his plaint asked for relief over against non-hypothecated property, but there was no adjudication upon the question, whether or not he was entitled to obtain such relief. Where a party entitled to a charge claims not merely a remedy against the property, the subject-matter of the charge, but also a personal remedy against the owner of that property, it appears to us, that it is not merely not premature to decide the question of liability on the hearing of the original suit, but that it may be convenient to do so. It would be premature to pass an order under section 90, but it would not be premature, we think, to determine what is the extent and nature of the liability of the defendant. In the case of Raj Singh v. Parmanand, [1889] I.L.R., 11 All., 486. Sir JOHN EDGE, C.J., and TYRRELL, J., held that the decree contemplated by section 90 can be made in a suit in which the decree for sale is passed, and it is not necessary to institute a fresh suit to obtain such a decree as was done in the case before us. If there be only one suit, it seems to be reasonable that the rights and liabilities of the parties should be determined at the first hearing, which is in reality the hearing of the suit. The remedy provided by section 90 is really ancillary and ought not to require any reconsideration of the rights and liabilities of the parties. In the case of Durga Dai v. Bhagwant Prasad, [1891] I.L.R., 13 All, 356.. STRAIGHT and TYRBELL, JJ., held that the decree contemplated by section 90 is in fact an order to be obtained in execution of a decree for sale. 3. If the Court which passed the decree for sale in this case had not determined the question of the personal liability of the defendants-appellants, we do not say that this question could not have been properly decided on the hearing of an application under section 90. 3. If the Court which passed the decree for sale in this case had not determined the question of the personal liability of the defendants-appellants, we do not say that this question could not have been properly decided on the hearing of an application under section 90. What we do say is, that that question having been raised before and determined by the Court which passed the decree for sale (as undoubtedly it was in this case, although the issue on the question was not framed with accuracy) and the decision of that Court not having been challenged, it is not open to the plaintiff to raise the question in a suit instituted under section 90. We are supported in this view by the decision of a Bench of this Court in the case of Miller v. Digambari Debya, [1890] 10 A.W.N., 142.. In that case a deed of mortgage of immoveable property executed in 1875 contained a convenant whereby the mortgagor made himself personally liable for payment of the mortgage debt. The mortgagee having become insolvent, the official assignee brought a suit in which he prayed, first, for the enforcement of the mortgage by sale of the mortgaged property, and secondly, in the event of the sale-proceeds being insufficient to discharge the debt, for enforcement of the present covenant. The Court granted the former relief but refused to grant the latter on the ground of delay in bringing the suit and of hardship to the defendant. On appeal it was held that the plaintiff was entitled to join with his claim for enforcement of the mortgage, the further claim for enforcement of it against the person and other property of the defendant. In the course of his judgment, STRAIGHT, J., observed: “In the present case the mortgagee did, as he was entitled to under the mortgage, claim a declaration to the effect that in the event of the sale of the mortgaged property not producing an amount sufficient to pay the mortgage debt, he would be entitled to proceed against the mortgagor in respect of her other property. Having claimed this relief a question arose in issue between the plaintiff and the defendant on the point, and that question has in fact been determined by the learned Judge, and consequently the plaintff's suit in that respect must be considered as finally decided. Having claimed this relief a question arose in issue between the plaintiff and the defendant on the point, and that question has in fact been determined by the learned Judge, and consequently the plaintff's suit in that respect must be considered as finally decided. I have no hesitation in saying that if hereafter the plaintiff came and asked a Court to give him the decree mentioned in section 90 of the Transfer of Property Act, he could be successfully met by the plea of res judicata. Now it is said for the respondent that because section 88 of the Transfer of Property Act contemplates a suit for sale, and this being a suit for sale, any other right of the mortgagee is excluded from determination by the Court because he has put it out of the Court's power to determine such right by asking for sale of the mortgaged property. I think the plaintiff was entitled to seek his further relief, and that the relief ought to have been granted to him because it was the outcome of the specific covenant on the part of the mortgagor in the mortgage-deed.” MAHMOOD, J., expressed his concurrence in everything that had fallen from STRAIGHT, J. In their judgment in Musahib Zaman Khan v. Inayat-ullah, EDGE, C.J. and BLAIR, J., do not express disapproval of this decision. In reference to it they say, “There is nothing to prevent the plaintiff asking for such a relief (that is, the farther relief), the only question is, at what period of the suit has the Court power to grant relief against non-hypothecated property.” 4. It was further contended on behalf of the respondent that the issue and finding upon the question of personal liability was not embodied in the decree, and consequently the question was not ret judicata. It was further contended on behalf of the respondent that the issue and finding upon the question of personal liability was not embodied in the decree, and consequently the question was not ret judicata. The answer to this is to be found in the judgment of the Full Bench in the case of Jamait-un-nissa v. Latif-un-nissa, [1885] I.L.R., 7 All., 606., in which it was held that “if in the judgment, of which the decree is the formal expression, findings have been recorded upon some issue against the party in whose favour the decree is, and that party desires to have formal effect given to the findings by the decree so as to allow of his filing objections thereto under section 561 of the Code or of appealing therefrom under section 540, he must take steps under section 206 to have the decree properly brought into conformity with the judgment, and that if he fails to take this course, the decree, though in general terms, will stand good as finally deciding the issues raised by the pleadings upon which the ultimate determination of the cause and the decree itself rested. “As we have pointed out, the plaintiff-respondent did not challenge the finding upon the question of the personal liability of the defendants-appellants in the original suit. We may further point that the institution of a separate suit for the purpose of obtaining the relief claimed by the plaintiff under section 90 was unnecessary and improper. An application under section 90 in the suit only was necessary. 5. For these reasons we allow the appeal, set aside the decree of the learned Judge of this Court and also the decree of the lower appellate Court, and restore the decree of the Court of first instance with costs in all Courts, including fees in this Court on the higher scale.