JOTONI CHOWDHURANI Vs. AMOR KRISHNA SAHA

JUDGEMENT

(1.) This is an appeal against an order of the Subordinate Judge of Chittagong allowing execution to proceed in satisfaction of a decree obtained by the opposite party against the present appellant. The decree is dated the 12 July 1898, and is an ordinary decree obtained in a suit brought by the present respondents to recover a sum of money due to them on a mortgage. The decree directed that the debt should be discharged by sale of the mortgaged property.

(2.) It appears that prior to the mortgage a declaration had been issued by Government on the 19 July 1893 to the effect that the property covered by the mortgage would be acquired by Government for the Assam Bengal Railway. The date of the mortgage was the 28 November 1895 corresponding to 10 Aghran 1257 Maghi. In due course the property covered by the Government declaration including the mortgaged property appears to have been taken possession of by Government and compensation for the acquisition was awarded. There was a prior mortgage on the property and the first mortgagee brought a suit on his mortgage and obtained a decree and in satisfaction of that decree sold off certain properties which were covered by both the mortgages but were other than those acquired by the Government. As the sale proceeds were not sufficient to satisfy his decree in full, he in another application for execution, recovered the balance out of part of the compensation money in the hands of the Collector of Chittagong.

(3.) The present application for execution was made in case No. 263 of 1902 and the decree- holders sought to have their decree executed against the balance of the money standing in the name of the appellant as a portion of the amount awarded by the Land Acquisition Collector as compensation for the property acquired by Government. The present appellant (judgment- debtor) objected to the decree being executed against the sum of money and her contention has been that as the decree directed that the mortgaged properties should be sold and as the mortgaged properties have now ceased to exist, therefore, the execution cannot be taken out of the decree passed under Section 88 of the Transfer of Property Act. The only remedy which it is suggested the decree-holders have is to apply for a further decree under Section 90 of the Act.