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1908 DIGILAW 38 (CAL)

Raj Kumar Singh v. Sheo Narain Sahu

1908-01-31

body1908
JUDGMENT 1. The only question we have to decide is whether a decree-holder in executing a mortgage decree, can, for the purpose of recovering the costs awarded by the decree, put up to sale properties other than the mortgaged property. The Sub-ordinate Judge has held that he can: and in support of his view has referred to two cases--one reported in Ratnessur Sen v. Jusoda ILR 14 Cal. 185 (1886) and the other in Damodar Das v. Budh Kuar ILR 10 All. 179 (1888). These however were not cases where the decrees had been for sale of the mortgaged properties. They were decrees passed for foreclosure where the mortgage had been by way of condition sale. The present case is similar to one decided by the Allahabad High Court reported in Maqbul Fatima v. Lalta Prosad ILR 20 All. 523 (1898). where it was held that the costs were really part of the amount for which the mortgaged property had been ordered to be sold. We are clearly of opinion that the decree for costs is a part of the mortgage decree and that the decree-holder must proceed in the first instance against the property mortgaged. It is only in the event of the mortgaged property being found insufficient to satisfy the mortgage decree, that a decree-holder can proceed against the other properties in the manner provided by sec. 90 of the Transfer of Property Act. In this view of the case we allow the appeal, and set aside the order of the Subordinate Judge allowing the decree-holder to proceed against properties other than the mortgaged properties. 2. The Appellants are entitled to their costs from the Respondent, the hearing-fee being assessed at three gold mohurs.