PIRBHU NARAIN SINGH Vs. BALDEO MISRA

JUDGEMENT

(1.) THE finding to the issue sent down is to the effect that the property mortgaged is an occupancy holding of which the mortgagor was not the tenant at the date of the last settlement, nor is at the present day. THE result is that the appellant finds "himself with the property mortgaged to him, which, so far as he is, conceded, is non-existent and which he certainly cannot bring to sale. THE learned vakil who appears for the appellant cannot refer me to any ruling which goes so far as to say that an order may be granted under Section 90 of the Transfer of Property Act, where no property has been put to sale because from no fault of the mortgagee the property mortgaged to him cannot be brought to sale. THE remedy given by Section 90 is an extraordinary remedy and must, therefore, be applied with great care and jealousy. In the present case it does seem a hardship that the mortgagee is deprived of his security from no fault of his own, and is now barred from enforcing a personal remedy in the ordinary way. THE learned vakil asks me to apply the principle laid down by Aikman, J., in Kedar Nath V/s. Chandu Mal (1903) I.L.R., 26 All., 25 where, at page 27, the learned Judge remarks as follows: "In the present case the respondent brought to sale the whole of the mortgaged property which he could sell, and has thus exhausted his rights under the order absolute and further on adds: "It appears to me that on this state of facts it would be in the highest degree inequitable to refuse him a decree by which alone he can recover from his judgment-debtors the unpaid balance of money which they owe him." But the procedure adopted by the decree-holder in that case was one which could be brought into harmony with Secs.88, 89 and 90 of the Transfer of Property Act. In the present case it is not go. It seems to me I have no alternative but to dismiss the appeal, but without costs, as no one appears for the respondent.