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Judgment
This appeal arises out of a suit brought by the plaintiffs to recover a sum of Rs. 500 with interest due under a document executed by the Defendants on the 29th of November 1891. The material terms of that deed are set out in the judgment of the Munsif. The Plaintiffs waiving their right as mortgagees under the deed sought to recover only a monetary decree.
Among the objections raised by the Defendants in answer to the suit, one had reference to the right of the Plaintiffs to maintain an action of this nature. In para. 3 of their written statement, the Defendants say as follows : --
The Plaintiffs have no right to institute a suit in this form, leaving aside the property mortgaged, and such a suit is inadmissible under the terms and provisions of the mortgage ijara deed.
And they repeat this objection in paragraph 7 in these words :--
The Plaintiffs are not competent to institute the suit in the present f(sic), leaving the mortgaged properties untouched.
The third issue framed by the Munsif has reference to this objection.
The Munsif decreed the Plaintiffs'' claim.
On appeal his judgment has been up-held by the District Judge.
In special appeal it is contended, first, that the right of the Plaintiffs to recover the amount of the debt was limited to the mortgaged property; and secondly, that the Plaintiffs were not entitled to have a money-decree in this suit, giving up their lien on the mortgaged property. In other words, it is urged that the Plaintiffs must proceed under the provisions of sec. 86 of the Transfer of Property Act.
As regards the first contention it is sufficient to refer to the terms of the deed which show clearly that the Defendants did make themselves personally liable for the satisfaction of the debt; and that the property was only given as collateral security. The transaction was clearly one falling within the definition of a simple mortgage contained in the Transfer of Property Act.
The next question is whether the Plaintiffs were entitled to waive their right to proceed against the mortgaged property and seek only to bind the Defendants upon their personal liability. In our opinion a mortgagee is not precluded by any provision of the law from adopting this course. And sec. 99 of the Transfer of Property Act gives abundant indication in support of our view. That section runs as follows :--"Where a mortgagee in execution of a decree for the satisfaction of any claim, whether arising under the mortgage or not, attaches the mortgaged property, he shall not be entitled to bring such property to sale otherwise than by instituting a suit under sec. 67 and he may institute such suit notwithstanding anything contained in the Code of Civil Procedure, sec. 43." Of course; if a mortgagee does not choose to proceed under the provisions of secs. 86 to 90 of the Transfer of Property Act, he cannot afterwards in execution of his decree obtained otherwise than under the provisions of the Act bring to sale the mortgaged premises without recourse to the provisions of sec. 67. In other words, if a mortgagee chooses to give up his mortgage lien and rest content with a simple money-decree upon the bond, he cannot proceed against the mortgaged property without complying with the provisions of that section. In this view of the case, we think the judgments of the lower Courts are right, and we accordingly dismiss this appeal with costs.