Rajah Sree Nath Roy vs Gadadhar Das

Jenkins, J.—In this case the documents of title relating to the immovable property mentioned in the plaint were delivered with intent to create security thereon and as the transaction took place in the town of Calcutta I am of opinion that a good mortgage was thereby created though some of the properties are situated outside the limits of the town. The only question is as to the appropriate remedy, I was referred to the statement in a text book (Brown and Shephard''s Transfer of Property Act, 3rd Ed., p. 199,--Fr. Ed.) that the practice in mortgages of this class is regulated by the English practice and if the statement were correct then the remedy would be foreclosure.

It seems however that the practice in this Court has, for a long series of years, been to decree a sale and I accordingly will make a decree in that form. I think it would be right to preface the decree with recital to the following effect. "It appearing that the documents of title relating to the immovable properties in question and mentioned in the plaint have been delivered to the plaintiff or his agent with intent to create a security thereon Declare &c." By this means it will appear on the face of the decree that the case comes within the last para of s. 59 of the Transfer of Property Act.