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mortgagor, the Court should not refuse to grant that relief upon such
grounds as were stated in that particular case. There are also two rulings
to which reference was not directly made, but which have some bearing
upon the present case and they are reported in the Weekly Notes for 1889,
pages 149 and 191. The former was one of my own, which I refer-
red to in the case reported in the Weekly Notes for 1890, page 142.
The other is a ruling of the learned Chief Justice and my brother
Tyrrell, and in none of these rulings is there anything in conflict with
the view that I am now expressing that the decree contemplated in s. 90 of
the Transfer of Property Act is in fact nothing more nor less than an
order to be obtained in execution of a decree for sale, when, under that
decree for sale, the sale has taken place and has proved insufficient to
satisfy the mortgage-debt. Even if the application in the present case
of the 19th December 1889 were looked as strictly as it professes to be,
viz., for a decree under the terms of s. 90 of the Transfer of Property Act
and for an order to attach and sell other properties of the judgment-
debtor, I should not myself regard it as in any way invalidating or dis-
turbing the legality or force of the decree itself as it originally stood.

In my opinion it would be a positive scandal to give effect to the
contention now made, when it was by the action of the judgment-debtor
herself that the order was made by which her objection succeeded on the
14th December, 1889.

I dismiss the appeal with costs. Appeal dismissed.



13 A. 360 = 11 A.W.N. (1891) 127.

[360] APPELLATE CIVIL.

Before Mr. Justice Straight and Mr. Justice Tyrrell.



BATAK NATH (Decree-holder) v.
(Judgment-debtors).*



PlTAMBAB DAS AND OTHERS
[9th April, 1891.]



Mortgage Decree against the person and other property of the judgment- debtor as well
as against the property mortgaged ^.ct IV of 1882 (Transfer of Property Act), s. 90.

In a suit for enforcement of a mortgage security the plaintiff prayed for a
decree both as against the mortgaged property and also, in the event of the



* First Appeal, No. 61 of 1890, from an order of Babu Ganga Saran, Subordinate
Judge of Mainpuri. dated the 21st December 1889.

(1) 10 A.W.N. (1890) 142.

228



YII]



BATAK NATH V. PITAMBAK DAS



13 All. 361



mortgaged property not realising sufficient to satisfy his claim, as against the
other property and the persons of the defendants, and the decree which the plaint-
iff obtained was framed in accordance with the prayer in the plaint, that is to
say. the decree expressly provided that, should the mortgaged property not
realise suffioiemt to satisfy the amount decreed to the plaintiff, the other property
of three, and the persons of two, of the judgment-debtors were to be liable.

Held that sach a decree could bo eraouted against the persons and other pro-
perty of the parties named therein, without its being necessary for the decree-
holder to obtain a separate decree under s. 90 of the Transfer of Property Act,
(IV of 1882).

Miller v. Digambiri Debya (1) referred to.
[R., 32 M. 534 (536) =5 M.L T. 246 (247) = 4 Ind.Cas. 1120 ; D.. 14 A. 513 ; 21 C. 26.]

THE facts of this case, so far as they are necessary for the purposes of
this report, sufficiently appear from the judgment of the Court.
Munshi Madho Prasad, for the appellant.
The respondents were not represented.

JUDGMENT.

STRAIGHT, J. (TYBRELL, J., concurring). This is an execution first
appeal and it relates to execution-proceedings in regard to a decree of the
17bh December 1886. That decree was couched in the following terms :
" It is decreed and ordered thafc the plaintiff's claim for Es. 6,251-8-0,
with proportionate costs and interest due for the period of pendency at the
rate of 8 annas per cent, on the principal amount, from this date on the
whole, he decreed by enforcement of lien and sale of 5 biswas of Gadan-
pur ; that if the property hypothecated be not sufficient, then the persons
and the other property of Pitambar Das and Dbanput Eai and the
property of Chandan Lai will be liable ; that the rest of the claim be
dismissed."

It is to be observed that this decree was partly a decree for sale of
mortgaged property by enforcement of a mortgage security, and [361] it
also declared that, in the event of che mortgaged property being insufficient
to pay the mortgage-debt when sold, the balance should be recoverable
from the other property and person of the judgment-debtor. That decree
is very similar in terms to one that was drawn up by my brother
Mahmood and myself in the case reported in the Weekly Notes for 1890
at page 142.

When a Court passes a decree for sale under s. 88 of the Transfer of
Property Act and that is the only relief asked for in the plaint, the
decree should be limited to a decree for sale of the hypothecated property ;
and it is in that case that the subsequent contingency contemplated by
s. 90 of the Transfer of Property Act arises. But here in the present case,
having regard to the prayer in the plaint, provision was in Germs made in
the decree itself for what was to be done in the event of the proceeds of
the sale of the hypothecated property proving insufficient to pay the
mortgage-debt. With a decree so shaped the Court whose business it was
to execute it had no option to go behind its terms, and when the condition
precedent mentioned in it as to the enforcement of the decree against the
person and other property of the judgment-debtor came into effect, it was
bound to give effect to that provision and to enforce it against the person
and other property. It was with this object and for that purpose that the
decree-holder put in his application of the 14th December 1889, which was
the subject of the Subordinate Judge's order that is made the ground of this

(1) 10A.W.N. (1890) H2.
229



1891,

APRIL 9.

APPEL-
LATE
CIVIL.

ISA. 860 =

11 A.W.N.

(1891) 127.



13 All. 362



INDIAN DECISIONS, NEW SERIES



[Yol.



1891 appeal. It was objected by the judgment-debtor that the decree-holder
APRIL 7. could not sell the other property of the judgment-debtor or proceed against

his person for the unsatisfied balance of the mortgage-debt without first

APPEL- obtaining a decree under s. 90 of the Transfer of Property Act. I have-
LATE already pointed out that, looking to the terms of the decree, no such
GiVlL further decree was necessary. But the Subordinate Judge, whilst he

appears to have been of opinion that it was necessary for the decree-holder

18 A. 360 to have a decree under s. 90 of the Transfer of Property Act, refuses to

11 A.W.N. grant him such a decree upon the ground that the grant of such a decree

(1891) 127. is purely discretionary, and that, having regard to the contention of the

judgment-debtors " That the mortgaged [362] property purchased by the

decree-holder is more in value than the whole sum due on the mortgage,

and in proof of this fact they offer to pay up within a month the whole

sum due, if the decree-holder gave up the property. * I would

therefore presume that the decree-holder in fact has got all that he was

justly entitled to."

This seems to me to be not only a wrong method of dealing with this
execution proceeding, because the question of s. 90 of the Transfer of
Property Act never entered into consideration at all, but a very insufficient
reason for disposing of an application for a decree under s. 90. The
Subordinate Judge's order in our opinion cannot stand, and, in decreeing
this appeal and reversiog the order of the Subordinate Judge, we direct
that he take up the application of the 14th September 1889, and dispose
of it according to law. The appellant will have his costs of this
appeal.

Appeal decreed.



13 A. 362 = 11 A.W.N. (1891) 115.
EEVISIONAL CEIMINAL.
Before Mr. Justice Straight.



IN THE MATTER OF THE PETITION OP JAI LAL.
[23rd April 1891.]

Criminal Procedure Code, s. 145 Order for interim possession of immoveable property
Point of time possession at which is to be looked at in determining which party is
entitled to an order under s. 145.

The possession whioh a Magistrate aoting under s. 145 of the Code of Criminial
Procedure has to find and support, is possession at the time of the Magistrate's
proceedings. Henoe, where a Magistrate decided a question of possession under
s. 145 upoo evidence taken si x months previously, held that suoh order was
irregular and unsustainable.

[R., 18 M. 41 (42),]

THIS was a raference made by the Sessions Judge of Farakhabad
under the circumstances stated in his order of the 23rd March 1891,
which is as follows : " This is an application for the revision of an order
of Mr. C. D. Steel, Joint Magistrate of Farakhabad, purporting to have
been passed under the provisions of s. 145, Criminal Procedure Code.
From the record of the proceedings it appears that the Joint Magistrate made
no inquiry as to the actual [363] possession of the parties at the time the
question came before him, but relied on an order passed by the Collector
six months previously. That order, even if it oould be relied on in

* Criminal Revision No. 174 of 1891.
230



YII] MIBZA ANAND BAM V. MAUSUMA BEGUM 13 All. 36*

these proceedings, does not clearly determine the question of actual 1891
possession by one or other of the contending parties, for the Collector APRIL 28,
observes : ' It seems to me that both are in possession, though perhaps
not to an equal extent.' The ruling of the Bombay High Court inIn REVI-
the matter of Huchapa and Shivagangava (1) is in point. SIGNAL

In my opinion the order of the Joint Magistrate ought moreover to CRIMINAL,
have been addressed to the person who asserted herself to be the owner
of the land and not to her agent. 13 A. 362 =

For the above reasons I report the case to the High Court with the 11 A.W.N,
recommendation that the Joint Magistrate's order be set aside, and that (1891) 115.
if he is still of opinion that a dispute likely to cause a breach of the peace
exists, he be directed to decide the case after taking evidence as to actual
possession. The Joint Magistrate's explanation is herewith submitted
in accordance with the instructions contained in C. L. No. 2 of 1885."

The reference came before Straight, J., who passed the following
order :

ORDER.

STRAIGHT, J. The Joint Magistrate's explanation does not meet the
difficulty. Hejhas decided the question of possession entirely upon the finding,
of the Officiating Collector of the 6th June 1890, which was no evidence .
of the issue he had to try, namely which of the contending parties was in
actual possession at the time of his (the Joint Magistrate's) proceedings.
The Joint Magistrate would be well advised to carefully examine the terms
of a section before he proceeds to. act under it, as his irregularity of action
in this matter has necessitated this reference by the learned Judge. I
quash his order, but it will be open to the Joint Magistrate to hold a fresh
proceeding if the required conditions still exist.

13 A. 361 = 11 A.W.N. (1891) 107.

[364] APPELLATE CIVIL.

Before Sir John Edge, Kt. t Chief Justice, and Mr. Justice Tyrrell.



MIRZA ANAND RAM (Defendant) v. MAUSAMA BEGAM (Plaintiff)*
[24th April, 1891.]

Landholder and tenant Suit for rent tuhere the right to receive it is disputed Jurisdic-
tion of Civil and Revenue Courts Act XII of 1881 (North- Wtstern Provinces Rtnt
Act), s. 148.

.V sued I and another for rent in the Court of the Collector. The defendants
pleaded payment to V, who was accordingly brought on to the record as a
co-defendant under e. 148 of the North-Western Provinces Bent Act (XII of
18SJ). The Collector decided in favour of V, The plaintiff appealed to the District
Judge making all three persons respondents. The District Judge reversed the
decision of the Collector and ordered the whole costs to be paid by V, who there-
upon appealed to the High Court.

Held that the District Judge had no jurisdiction to entertain the appeal so
far as the party brought in under s. 148 was concerned, and, that being so, bad
no power to award costs against him.

[R., 12 C.P.L.R. 1.]

* Second Appeal, No. 946 of 1888, from a decree of F.W. Pox, Esq. ^District Judge
of Gajipur, dated the 18th April 1888, reversing a decree of F.B. Mulock, Esq.,
Collector of Ballia, dated the 2nd May 1887.

(1) 15 B. 152.
231



13 All. 36S



INDIAN DECISIONS, NEW SERIES



[Yol.



1891 IN this case the plaintiff, Musammat Mausuma Begam, sued two

(APBIL 24 persona, named Ilahi Bakhsh and Abdul Rahman, whom she alleged to be
her tenants, under 8. 93, cl. (a) of the North-Western Provinces Rent Act
2 APPEL- (XII of 1881) for arrears of rent for the years 1291, 1292 and 1293 fasli.
LATE Her case was that the land in respect of which the rent was claimed had
CIVIL. Deen ner S7 ' r down to the end of 1292 fasli, when her proprietary rights
had been disposed of to the Maharaja of Vizianagram; and that since that
13 A. 364= time she had held ex-proprietary tenant rights in the land, andwasthere-
11 A.W.N. fore entitled to receive the rents. The Maharaja of Vizianagram interven-
<1891) 107. e d under s. 148 of Act XII of 1881, alleging that he was the person
entitled tp receive the rents and denying the plaintiff's ex-proprietary
rights in the land. The defendants, Ilahi Bakhsh aud Abdul Rahman,
admitted the rent to be due and expressed their willigness to pay it to the
person in whose favour the Court should decide. The Court of first
instances (the Collector of Ballia) found that the defendants, Ilahi
Bakhsh and Abdul Rahman, were not tenants of the plaintiff, and accord-
ingly dismissed her suit. The plaintiff, then appealed to the District
[365] Judge, making the Maharaja, Ilahi Bakhsb and Abdul Rahman
respondents. The District Judge found in favour of the appellant, and,
reversing the decree of the Court below gave a decree for the plaintiff for
. the amount claimed against Ilahi Baksh and Abdul Rahman and ordered
the whole costs of the suit to be borne by the Maharaja. The Maharaja
then appealed to the High Court.

Mr. T. Oonlan and Munshi Kashi Prasad, for the appellant.
Hon'ble Mr. Spankie, for the respondent.

JUDGMENT.

EDGE, C.J., and TYRRELL, J. This is an appeal by the Maharaja of
Vizianagram against so much of the decree of the District Judge of Ghazi-
pur, sitting as a Court of appeal in a rent suit as affected the Maharaja.
Musammat Mausuma Bibi brought her suit against Ilahi Bakhsh and
another for rent alleged to be due by them to her for land which had been
her sir land. The Maharaja was brought in under s. 148 of Act XII of 1881.
The Collector decided the case in favour of the Maharaja. ' The plaintiff
appealed, making Ilahi Bakhsh, the other man, and the Maharaja respon-
dents. The District Judge reversed the decision of the Collector, holding
that the rent was payable to the plaintiff and decreed the whole costs of the
suit and appeal to be borne by the Maharaja. The appeal so far as the ques-
tion between the plaintiff and her two alleged tenants was concerned lay to
the District Judge. The question raised in this appeal is whether, so far
as the Maharaja is concerned, the District Judge had jurisdiction to
entertain the appeal. If he had not jurisdiction to entertain the appeal,
he had no jurisdiction to decree the costs of the suit and appeal against
the Maharaja. There is a long current of rulings bearing on this question
some relating to the corresponding section of the former Act. The
rulings do not appear to have been brought to the notice of the District
Judge. We consider they are binding on us. We do not propose to
discuss those rulings, all we need say is that we agree with them. The
first of those is the case of Chotu v. Jitan (1). The next is the case of
Kishna Bam v. Hingu Lai (2). Next is Madho Prasad v. Ambar [366]
(3) and the case of Gobind Earn v. Narain Das (4). Also there is a case



(1) 3 A. 63.



(-2) 4 A. 237.



(3) 5 A. 503.



(4) 9 A. 394.



232



YII]



UMMI PAZL V. RAHIM-UN-NISSA



13 All. 367



decided in 1866, viz., Musammat Thakoorayeen Bhagmanee Koonwar v.
Syud Farzand Ali and others (1). It appears to us that these cases are in
point.

Following these authorities, we allow this appeal with costs and set
aside so much of the decree of the Court below as affects the Maharaja of
Vizianagram. We do not disturb the decree so far as it affects Ilahi
Bhakhsh and Abdul Eahman.

Appeal modified.



13 A. 366 = 11 A.W.N. (1891) 129.

APPELLATE CIVIL.
Before Sir John Edge, Kt. t Chief Justice, and Mr. Justice Knox.



1891

APRIL 24.

APPEL-
LATE
CIVIL.

13 A. 364 =
11 A.W.N.
(1891) 107.



UMMI FAZD (Defendant] v. KAHIM-UN-NISSA AND OTHERS

(Plaintiffs}* [2nd May, 1890.]

Civil Procedure Code, ss. 522, 525 Award Decree on an award filed in Court, hew to
be framed Appeal.

When an award has been filed in Court, as provided by s. 525 of the Code of
Civil Procedure, the judgment and decree based thereon must be drawn up
specifically in terms of tbe award. If the decree merely decrees in general terms
the claim of one party or of the other, it cannot be said that such decree is in
accordance with the award, and being " not in accordance with the award " an
appeal will lie therefrom.
JR., 10 C.W.N. 601 (6051 = 2 C.L.J. 153 (158).]

THE facts of this case, so far as they are necessary for the purposes
of this report, appear from the judgment of the Court.

Pandit Sundar Lai and Mr. Malcomson, for the appellant.

Munshi Bam Prasad, Maulvi Ghulam Mujtaba and Maulvi Mahmud
Husain, for the respondents.

JUDGMENT.

EDGE, C. J., and KNOX, J. An agreement of reference having been
entered into between certain parties, the arbitrator appointed by that
agreement made his award. Musammat Sahim-un-nissa, one of the
persons interested in the award, applied to the Court of the Subordinate
Judge of Sabaranpur to have the award filed in Court. The application
was mada under s. 525 of the Code of Civil Procedure. In her application
she also asked that a decree should be passed according to the award in
her favour against the [367] defendants, who were other parties to the
arbitration. On the 13bh of November 1889, the Subordinate Judge
delivered a judgment and made a -decree. So far as the filing of the award
is concerned, it appears to us that that was a good order, but that we need
not consider, as there is no appeal from an order directing an award
to be filed. So far as that decree purports to be a decree under s. 522
of the Code of Civil Procedure, it was appealable if it was in excess
of, or not in accordance with, the award. The decree was as follows :
"It is decreed and ordered that the plaintiff's claim be decreed with
costs. The costs incurred by the defendants be borne by themselves
except the defendant Zahur Muhammad, who shall get his costs from
the plaintiffs. The plaintiff to get her whole costs from Musammat
Ucami Fazl, the answering defendant. The rest of the defendants.

* First Appeal, No. 38 of 1890, from a decree of Maulvi Sayyid Muhammad,
Subordinate Judge of Baharanpur. dated the 13th November 1887.
<1) N. W. P. H. C. R. 1866, R. C. A. 20.



A VII-30



233



13 All. 368



INDIAN DECISIONS, NEW SERIES



[Yol.



1890

MAY a.

APPEL-
LATE
CIVIL.

ISA. 366 =
11 A.W.N.
(1891) 129.



are exempted from the costs incurred by the plaintiff." That is not a
decree as contemplated by s. 522 of the Code of Civil Procedure. A
decree in general terms of that kind does not comply with that section. A
Judge when proceeding under s. 522 of the Code to give judgment and make
a decree, must give a judgment according to the award; that is, he must
state in his judgment what his construction of the award is as to the rights
and interests of the parties. He must say, for instance.lthat under the award
the plaintiff is entitled to mauza A, the defendant is entitled to mauza B,
and so on, and, having given that judgment, the decree must be drawn up
in accordance with that judgment ; that is, it must be a decree dealing
with the specific rights of the parties, and not merely decreeing the plain-
tiff's claim in general terms, as was done here. When a decree so framed
upon the judgment has been drawn up, the question whether an appeal
would lie from it would depend on whether it was in excess of, or not in
accordance with, the award. In the case of a decree in general terms,
such as that in this case, a Court has no opportunity of judging whether
the decree is in excess of the award. Certainly it is not in accordance
with the award, because it defines specifically no rights and interests
whatsoever. Errors of this kind by judicial officers would probably not
arise if those officers, before proceeding under a particular section, took
the trouble to read the section care- [368] fully, in order to ascertain what
was the procedure the law required them to follow. We must set aside, as
we do, the decree of the 13th November 1889, so far as it purports to be
anything beyond an order for filing the award* We express no opinion on
the merits of this case. The appeal is allowed on the one ground which
we have considered. The other grounds in the view which we take of
this case do not at present arise. We remand the case under s. 562 of
the Code of Civil Procedure to the Court of the Subordinate Judge, and
direct him to dispose of the 'suit according to law. The costs of this
appeal will be costs in the cause.

Appeal decreed.



13 A. 368 = 11 A. W.N. (1891) 130.

APPELLATE CIVIL.
Before Sir John Edge, Kt. t Chief Justice, and Mr. Justice Tyrrell.



CHAND MAL AND ANOTHER (Plaintiffs) v. ANGAN LAL (Defendant)*

[20th May, 1891.]

Suit by purchaser of decree to recover money ot'deceased judgment-debtor in the hands
of his agent Limitation Act XV of 1877 ^Limitation Act), sch. ii t No. 120.

One A P, having certain money? lying at his credit in Calcutta, empowered
A L to receive the same and hold them on his behalf. A P died at Moradabad,
and subsequently to his death, the said moneys, which remained in the hands
of A L, were attached by one of the creditors of A P in execution of a decree.
The decree-holder sold his rights under the decree in respect of the moneys in
the bands of A L to the plaintiffs, who sued to obtain the same from A L.

Held that the period of limitation applicable to such a suit was that prescribed
by art. 120 of the second schedule of the Indian Limitation Act (Act XV of
1877.)

Gurudas Pyne v. Ram Narain Saha (1) referred to.
[D., 36 P.B. 1913 = 17 Ind. Cas. 311 (314)=- 16 P.L.B. 1913.]



First Appeal, No. 29 of 1890, from a decree of Babu Anant Bam, Subordinate
Judge of Moradabad, dated the 9th January 1890.

( 1) 10 C. 860.

234



YII] CHAND MAL V. ANGAN LAL 13 All. 370

THE fact of this cases were as follows : Narain Das, an ancestor of 1891
the plaintiffs, obtained a decree for a debt against Ajudbia Prasad, the MAY 20,

elder brother of the defendant, on the 23rd July 1878, from the Court of

the Judicial Assistant Commissioner, Peshwar, for Ra. 30,545-12-0. APPEL-
Nothing having been realized in respect of this decree, a certificate under LATE
s. 223 of the Code of Civil Procedure was obtained in 1881, for tbe execution
of the decree in the district of Moradabad, of which Ajudhia Prasad was
a resident, but it appears [369] that nothing was effected in pursuance of 13 A. 868
this certificate. Afterwards, on the 30th April 1884, another certificate 11 i.W.N
was obtained from the Peshwar Oourt by one Damodar Das, as represent- (1891) 130.
ative of the deceased decree-holder, Narain Das, and in pursuance of
that certificate Chand Mai and Musammat Bbana Dai applied on the
20th August 1885 for execution of the decree in the Court of the Judge
of Moradabad. They also applied for the transfer of the decree to the
Court of the Subordinate Judge, and, Ajudhia Prasad having died on the
13th June 1883. for the substitution of his widow and minor sons as
judgment-debtors. They further prayed that the amount of the debt
to the extent of Rs. 9,635-4-9 might be recovered from Angan Lai, the
brother of Ajudhia Prasad, be having received that money from the
Commissariat Office at Calcutta as money due to Ajudhia Prasad.
Notice was sent to Angan Lai, who objected. His objections were
disallowed, and he thereupon filed a regular suit to get rid of his liability,
alleging that the money in question had been paid over to Ajudhia Prasad.
That suit was dismissed by the Court of first instance, but, in appeal the
High Court reversed the decision of the Court below, on the ground that the



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 36 of 155)