NARSINGH DAS Vs. MUSAMMAT MUNNA

JUDGEMENT

(1.) THE appeal arises out of the execution of a simple money-decree. THE decree- holders obtained in the year 1892 a usufructuary mortgage of certain property. THE period of the mortgage was 8 years. THE mortgagees never got possession. THEy subsequently instituted a suit for sale of the mortgaged property. THEy were met by numerous defences including defence of payment. THE Court before which the case ultimately name held that there was no payment, and that the mortgagees were not entitled to bring the property to sale. THE property had at that time already been mortgaged a second time by way of usufructuary mortgage to another person. THE Court, however, held that the mortgagees were entitled to a simple money-decree under the provisions of Section 61 of the Transfer of Property Act. Such a decree was granted, and this is the decree which is now sought to be executed. THE property which has been attached and which the decree-holders seek to sell is the same property as was originally mortgaged. THE decree-holders only seek to sell the equity of redemption therein, that is to say, they seek to sell the property subject to the usufructuary mortgage of the second mortgagee. At the time the decree was obtained the decree-holders sued as mortgagees for the sale of the property, and the decree which was granted to them was a decree under section. 68, that is to say, a simple money-decree to "mortgagees" who had a right to the possession of the mortgaged property but whose mortgagors had failed to deliver possession. THE lower appellate Court has held that Section 99 of the Transfer of. Property Act stands in the decree-holder's way, and that they cannot, in execution of a simple money-decree, attach or sell what was mortgaged to them. THE decree-holders contend that in the events which have happened they are certainly not now mortgagees, and that they ceased to be mortgagees when a simple money-decree was granted to them. THEy further contend that having sued for the sale of the mortgaged property under Section 67 of the Transfer of Property Act and having failed to get a decree for sale, they are now entitled to attach and sell the property notwithstanding the provisions of Section 99 of the Transfer of Property Act, and the fact that the property was once mortgaged. In the case of Madho Prasad Singh V/s. Baij Nath Tewari A.W.N. (1905) 152 : 2 A.L.J. 356 the facts wore as follows;-Certain mortgagees sued under a covenant in the mortgage-deed to recover the mortgage-money and interest. THEy expressly disclaimed any interest in the mortgage. Having obtained a simple money-decree, they sought to sell the mortgage property. A Bench of this Court held that Section 99 of the Transfer of Property Act prevented the sale of the mortgaged property. We find it impossible to distinguish in principle the circumstances of the present case from the circumstances of the case just cited. It can be said in both oases that the mortgage was extinguished, or at any rate that no suit under Section 67 could be brought for the sale of the property. THE lower appellate Court has referred to this case and followed it. We are quite unable to distinguish it, and we accordingly dismiss the appeal with costs.