SUKHDEO PRASAD Vs. LACHMAN SINGH

JUDGEMENT

(1.) In this case the final decree or the Commissioner has been referred to this Court for report and opinion under Rule 17 of the rules for the administration of justice in the Kumaun district. The suit in which the decree and judgment were passed was an ordinary suit brought by a mortgagee, asking for the sale of property mortgaged under Section 88 of the Transfer of Property Act. In his prayer for relief the plaintiff, in addition to the prayer for sale, added a prayer that "any other relief which the plaintiff may be entitled to may be granted, because the mortgaged property is at present under kham management." The suit was heard out, and had proceeded up to judgment and decree, when the plaintiff by a fresh application withdrew his prayer for sale of the mortgaged property and asked for a simple money decree. The Court of first instance granted a money decree. The Commissioner, however, in appeal set aside the decree; the only reason given in his judgment being that if the plaintiff had originally wanted a money decree he should have sued for it at first. It is admitted that the mortgage deed contains the usual covenant for payment, in addition to the further covenant that in default of payment proceedings will be taken against the mortgaged property.

(2.) We do not see on what grounds the prayer for a simple money decree can be refused. When the mortgage covenants were entered into both parties contemplated the possibility of a simple money decree; indeed the decree for sale pre-supposes and gives specific time for payment of the money, and it is only in default of payment that the sale can be resorted to.

(3.) One objection was taken by the learned vakil for the opposite party, which was to the effect that if we granted a simple money decree we should be practically allowing the plaintiff to alter his suit for sale into a suit of another and inconsistent character. We fail to follow this argument. Looking to the words in which the relief was couched, we are satisfied that the plaintiff all along asked for a simple money decree, if for any reason the decree against the property mortgaged were to prove ineffectual. No provision has been pointed out to us in the Transfer of Property Act, nor do we know of any, which forbids a simple money decree being granted under circumstances like these. Since hearing the arguments we have been furnished with an unreported case of this Court, Letters Patent Appeal No. 35 of 1901, Lala Bishun Sarup Vs. Mangal Sen decided on the 15th February 1902 and we find on looking into that case that the view which we now take is shared by two other Judges of this Court.