APPANDA MUDALY Vs. RAGHUTHAMBY AMMANI

JUDGEMENT

(1.) THE question raised by this appeal is not free from difficulty, but after having heard the matter fully argued, we are of opinion that the rule embodied in Section 99 of the Transfer of Property Act does not extend to decrees by consent. THE mortgagor and the mortgagee were entitled outside the Court to agree to the mortgage being substituted by the personal security of the mortgagor. This does not appear to us to be any good reason why they should be debarred from coming to such an arrangement after the suit has been instituted on the mortgage or why the Court should be precluded from passing a simple money-decree on the consent of the parties to that effect. If it was competent, then, for the Court to pass a simple money-decree by consent, does Section 99 of the Transfer of Property Act prohibit execution of the decree against the mortgaged properties? That really depends on whether the rule laid down in the section is intended solely or primarily for the benefit or protection of the mortgagor or whether it is a rule based on some general grounds of public policy. That it is meant only for the benefit of the mortgagor has been repeatedly held by this Court, and the Calcutta High Court see Mayan Pathuti v. Pakuran 22 M. 347, Muthu v. Karuppan 30 M. 313 : 17 M.L.J. 163 : 2 M.L.T. 181 and Ashutosh Sikdar v. Behari Lal Kirtania 35 C. 61: 11 C.W.N. 1011 : 6 C.L.J. 320 and we think that is the only reasonable construction to be placed on the provisions of the Section. It follows, therefore, that a mortgagor consenting to a money- decree being passed waives his right to the benefit of Section 99. This appeal is dismissed with costs.