MAHARAJA OF BENARES Vs. SADHO SINGH

JUDGEMENT

(1.) THIS appeal arises out of an application for the execution of a decree made upon a compromise. The decree directs sale of certain property which was hypothecated by the appellants as sureties for a lessee. It further directs that in the event of the proceeds of the sale not being sufficient for the discharge of the debt, the defendants would be personally liable for the balance due. The hypothecated property has been sold, but as the proceeds of the sale did not satisfy the decree, the present application was made for the arrest of the judgment debtors. It was opposed on the ground that the decree-holder ought to obtain a decree under Section 90 of the Transfer of Property Act, and that he had already made an application for such a decree, which was disallowed, and that the rejection of that application is a bar to the present application. THIS objection has been overruled by the Court below, but it has been repeated in the appeal before us. In our judgment the contention has no force. The decree must be deemed to be a combined decree under Secs.88 and 90 of the Transfer of Property Act. Therefore it was not necessary to apply for a decree under Section 90, and any order that may have been passed upon an application for a decree under Section 90 was an order passed without jurisdiction and cannot vary or supersede the decree as originally made. The appeal therefore fails. We dismiss it with costs.