Decided on April 12,1907



Chandavarkar, J. - (1.) THE question of law on this second appeal is, whether the transferee of a money decree obtained by a mortgagee against his mortgagor is bound by the restriction imposed upon the mortgagee by Section 99 of the Transfer of Property Act -viz., that he shall not be entitled to bring the mortgaged property to sale in execution of the decree otherwise than by instituting a suit under Section 67.
(2.) IT does not appear from the judgment of the lower appellate Court whether the assignment of the money decree by the mortgagee in favour of the present appellant was oral or in writing. But that is immaterial for the determination of the question above stated. If the assignment was oral, under the ruling of this Court in Parvata v. Digambar, I L R (1890) 15 Bom. 307, the appellant has no locus standi at all for the execution of the money decree, whether by attaching the mortgaged property and bringing it to sale or otherwise. If, on the other hand, the assignment was in writing, according to Section 232 of the Code of Civil Procedure, the transferee is not, as of right, entitled to execute the decree, but it is in the discretion of the Court to allow execution or not. See Javermal Hirachand v. Umaji Hayabati, I L R (1884) 9 Bom. 179 and Parvata v. Digambar, I L R (1898) 15 Bom. 307. And such discretion must be exercised reasonably : Krishna Mohini Dossee v. Kedarnath Chucherbutty, I L R (1888) Cal. 446. Section 232 of the Code of Civil Procedure provides that if the Court thinks fit "the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree -holder " i.e., by the transferor. The mortgagee, who obtained the money decree, held it subject to the condition or obligation prescribed by Section 99 of the Transfer of Property Act that if he seeks execution of it against the mortgaged property, he can only attach it but he cannot bring it to sale except by instituting a suit under Section 67. It is true that the present appellant, being a transferee of the money decree only and not of the mortgage, cannot himself institute such a suit. There is no hardship involved in that, because in the first place, the appellant must be regarded as having obtained the assignment with knowledge of the obligation imposed on his assignor by the law and secondly, ho might have stipulated with his assignor while taking the assignment that he should institute such suit for him. A mortgagee is prohibited by law from bringing the mortgaged property to sale in execution of his money decree against his mortgagor and "whatever is prohibited by law to be done directly cannot legally be effected by an indirect and circuitous contrivance". Per Tindal C.J. in Booth v. Bank of England, (1840) 7 Cl. & F. 509. It is, therefore, a question whether the act of a mortgagee who, having obtained a money decree, parts with it in favour of another to enable the latter to do in execution what the law prohibits his doing himself, would not amount to fraud, of which it has been said that it is "infinite in variety" (per Lord Macnaghten in Reddaway v. Benham, [1896] A.C. 199) and whether it is not "merely a device for carrying into effect that which the legislature has said shall not be done." Further, Section 238 of the Code of Civil Procedure provides that" every transferee of a decree shall hold the same subject to the equities (if any) which the judgment -debtor might have enforced against the original decree -holder." Under these circumstances wo think the decision of the lower appellate Court is right. The decree is confirmed.;

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