MALLIKARJUNADU SETTI AND NARAYANAMURTI AYYAR; KARUPPAN CHETTI Vs. LINGAMURTI PANTULU AND VALLIAPPA CHETTI; TANDAVARAYA DESIKAR

JUDGEMENT

(1.) In Appeal against Appellate Order No. 35 of 1901 and Appeal against Order No. 48 of 1900.--There can be no doubt that the provisions of the Civil P. C. are applicable to cases tried under special Acts, if the trials are in a Court of Civil Judicature and if there are no rules in the special Acts inconsistent with, or substituted for, the general rules of the Code of Civil Procedure. Now, in the Transfer of Property Act, after an order for sale in a mortgage suit has been made, no further rules are laid down as to the subsequent steps to be taken for the conduct of the sale and other incidents attaching to it. These matters must therefore be governed by the Civil Procedure Code as the Transfer of Property Act is silent in regard to them. The rules for the conduct of sales by a Civil Court are to be found in Chapter XIX (G) of the Civil Procedure Code and there is nothing in that chapter excluding from its operation sales in pursuance of mortgage decrees under the Transfer of Property Act. Section 311 of the Code in that chapter provides one mode of rescinding a sale before it has been confirmed, namely, by showing that there was material irregularity in publishing or conducting the sale by which substantial injury was caused. Section 310-A provides another mode by which a sale may be rescinded, namely, by allowing the judgment-debtor thirty-days grace under certain conditions for paying up the decree amount on account of which the sale was made. It seems to me that, if either of these provisions applies to sales in execution of any decree including a mortgage decree, the other must also do so. The fact that Section 310-A was enacted at a later date than Section 311 and after the Transfer of Property Act had come into operation cannot, in my opinion, make any difference. Section 310-A being incorporated as it is in the Civil Procedure Code, now forms part and parcel of it. When property is sold in execution of a mortgage decree it is not sold as mortgaged property, but as the absolute property of the quondam mortgagor treated as a judgment-debtor. It has been restored to his full ownership by operation of law (see Secs.87, 89 and 93 of the Transfer of Property Act). Therefore, there is no reason to treat it differently from any other immoveable property belonging to the judgment-debtor.

(2.) My answer to the references accordingly is that both Secs.310-A and 311 of the Code of Civil Procedure apply to sales in pursuance of mortgage decrees.

(3.) In Appeal against Order No. 156 of 1900.-- With regard to the question raised in this reference, namely, whether an appeal lies against an order refusing to make an order absolute upon an application made under Section 89 of the Transfer of Property Act, I think that it lies as from an order passed in execution and not as from a final decree. I entirely agree with the conclusion arrived at by my learned colleague, Mr. Justice Bhashyam Ayyangar, especially as it elaborates and confirms the view I took of the matter so far back as 1893 in the case of Bamasami V/s. Sami I.L.R. 17 Mad. 96, The late Chief Justice, Sir Arthur Collins, and myself there held that a decree passed under Section 92 of the Transfer of Property Act is a final decree and that orders passed under Section 93 were merely supplementary to the decree made under Section 92, showing whether the terms of the decree have or have not been fulfilled, in other words, orders for executing the decree in such respects as it has to be executed. For instance, the decree directs if the mortgagor has paid the money mentioned in the decree to the mortgagee, that the mortgagor shall, if necessary, be put into possession of the mortgaged property. The further order of the Court directing that the mortgagor be put in possession as he has paid the money, is clearly nothing but execution of the decree. It cannot be said to be a confirmation of the decree which it is merely carrying out. So, in the same way, when the mortgagor has failed to pay the amount mentioned in the decree, it is further decreed that the property be sold, and the subsequent order that the property be sold as the money has not been paid must also be held to be an order in execution and not merely a confirmation of the decree. To hold otherwise would be to hold that one part of the decree is final and that another part is not. There cannot be two final decrees on the same matter in any suit. So that, if the decree under Section 92 is a final decree in respect to the delivery of possession of the property to the mortgagor in case he pays, it is also final in respect to the sale of the property in case he does not pay. No doubt" the decree is a conditional decree, but the ascertaining which of its conditions has been fulfilled and the passing of orders consequent thereon cannot but be matters relating to its execution. It has been the practice of this Court to treat an application in execution for an order for sale in pursuance of a mortgage decree as tantamount to an application to make an order absolute for sale although these terms are not used. This could never have been permitted if it had been deemed necessary that before making an application for an order for sale in execution, a prior application for making the decree for sale absolute by an order had to be applied for and granted. So that the practice of this Court has been in accordance with the principle that a decree for sale is a final decree and the order for sale, whether it be called absolute or not, is obtainable only in execution of that final decree. Benson, J.