Tansukh Rai vs Sri Gopal - 1921 Supreme(All) 23

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1921 Supreme(All) 23

WALLACH, WALSH
Tansukh Rai – Appellant
Versus
Sri Gopal – Respondent

JUDGMENT

Walsh, J. - This is an Execution First Appeal raising a question which is by no means infrequent and which is constantly accompanied with difficulties of solution. The learned Judge from whose order the appeal is brought rightly says that it is not free from difficulty. He evidently felt doubts himself. The only criticism which one can pass upon his judgment is that lie relied upon somewhat antiquated reports, in the face of some recent decisions by Benches of this Court. The question is whether a mortgagee who has obtained a simple money decree, has obtained such decree in satisfaction of a claim arising under his mortgage within the meaning of Order XXXIV, Rule 14, of the Code of Civil Procedure, so as to present him from bringing the mortgaged property to sale in execution of his decree. The lower court has decided the question against the mortgagee, who appeals. It seems superfluous in these days to point out once more that this provision in the first schedule to the Code supplements old Section 99 of the Transfer of Property Act in a modified form, more favourable, if that be an appropriate expression, to the mortgagee, and the principle aimed at, and the mischief soug

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