BIBIJAN BIBI Vs. SACHI BEWAH

JUDGEMENT

(1.) The appellants obtained against the respondents an order absolute for sale under Section 89 of the Transfer of Property Act, of property mortgaged to them by the latter. The property was advertised for sale in pursuance of the order, but before the sale took place the mortgagors applied for permission to pay into Court the mortgage money and costs in satisfaction of the decree. The Court executing the decree declined to receive the money tendered by the respondents. The District Judge on appeal held that the money should have been received under the power conferred on the Court by Section 291 of the Code of Civil Procedure and ordered accordingly. The mortgagees have appealed.

(2.) The contention on behalf of the appellants is that an order absolute for sale having been passed and having regard to Section 89 of the Transfer of Property Act, the mortgagor's right to redeem was extinguished, and as the practical effect of an order under Section 291 permitting the deposit of the mortgage debt and, costs is to extend the period for redemption, the section can have no application in a proceeding for sale in pursuance of an order under Section 89. This contention is based on the words at the end of the section, "and thereupon the defendant's right to redeem and the security shall both be extinguished." In the view we take of the I construction of that section, it becomes immaterial to consider whether Section 291 of the Civil Procedure Code should properly be regarded as inconsistent with, or as ancillary to Section 89 of the Transfer of Property Act, nor is it necessary to consider whether, the rules of this Court making Section 291 applicable to sales of mortgaged properties are or are not ultra vires, or whether in fact, any such rules were really necessary. If the words "(sic) upon" relate to the passing of the order absolute for sale only, a difficulty might arise as to the application of Section 291 of the Civil P. C., hut in our opinion these words relate to the actual sale and the distribution of the proceeds, and not merely to the order passed for the purpose. It is not until a sale takes place and the sale-proceeds are distributed and the mortgage debt is thereby satisfied that the mortgagee's security ought to be extinguished.

(3.) The Legislature can scarcely have intended that the security was to be extinguished on the mere making of the order for sale, and before the mortgagee had been paid out of the proceeds of sale. The mortgagee continues to be the owner of the property subject to the payment of the debt, until the sale is completed, and then the ownership passes to the auction-purchaser. This seems to us to be a reasonable construction of the concluding words of Section 89 of the transfer of Property Act, and prevents numerous anomalies, which would otherwise arise. In this view, the rule of procedure laid down in Section 291 of the Code of Civil Procedure is not inconsistent with Section 89 of the Transfer of Property Act, as the right to redeem is not extinguished, until the sale has been actually completed and the proceeds of sale dealt with.