BADRI DAS Vs. INAYAT KHAN

JUDGEMENT

(1.) THIS appeal arises out of an application for a decree under Section 90 of the Transfer of Property Act, which has been refused by the Court below. The appellant obtained a decree under Section 88 of the Transfer of Property Act for the sale of certain houses and zamindari property. He has caused the houses to be sold by auction, but not the zamindari property. He alleges that the zamindari property has been sold in execution of a decree obtained by another mortgagee upon a prior mortgage, and on this ground he asks for a decree under Section 90. THIS case, in our opinion, is fully governed by the ruling of this Court in Muhammad Akbar V/s. Munshi Ram Weekly Notes 1899 p. 208. As was pointed out in that case, a condition precedent to an application under Section 90 is that the mortgaged property has been sold, that the proceeds of the sale are insufficient to discharge the mortgage and that there is a balance due to the mortgagee. Here the mortgaged property, by which we must understand the whole of the mortgaged property, has not been sold at the instance of the decree-holder, and therefore he is not entitled to obtain a decree under Section 90. It is not enough that a prior mortgagee has caused the zamindari property to be sold by auction. That such a sale has taken place is apparently due to the fault of the appellant himself. If he was a party to the suit in which the prior mortgagee obtained his decree, he ought to have redeemed the prior mortgage so as to make the mortgaged property available for the realization of the amount of his own mortgage. If, on the other hand, he was not made a party to the prior mortgagee's suit, it is still open to him to redeem that mortgage, and having done so, he would be entitled to bring the zamindari property to sale for the realization of his own money. In any case, as the appellant has not caused the whole of the property mortgaged to him to be sold, he cannot apply for a decree under Section 90 of the Transfer of property Act. THIS appeal must fail and is dismissed with costs.