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2. My answer to the references accordingly is that both Sections 310-A and 311 of the Code of Civil Procedure apply to sales in pursuance of mortgage decrees.

3. In Appeal against Order No. 156 of 1900.-- With regard to the question raised in this reference, namely, whether an appeal lies against an order refusing to make an order absolute upon an application made under Section 89 of the Transfer of Property Act, I think that it lies as from an order passed in execution and not as from a final decree. I entirely agree with the conclusion arrived at by my learned colleague, Mr. Justice Bhashyam Ayyangar, especially as it elaborates and confirms the view I took of the matter so far back as 1893 in the case of Bamasami v. Sami I.L.R. 17 Mad. 96, The late Chief Justice, Sir Arthur Collins, and myself there held that a decree passed under Section 92 of the Transfer of Property Act is a final decree and that orders passed under Section 93 were merely supplementary to the decree made under Section 92, showing whether the terms of the decree have or have not been fulfilled, in other words, orders for executing the decree in such respects as it has to be executed. For instance, the decree directs if the mortgagor has paid the money mentioned in the decree to the mortgagee, that the mortgagor shall, if necessary, be put into possession of the mortgaged property. The further order of the Court directing that the mortgagor be put in possession as he has paid the money, is clearly nothing but execution of the decree. It cannot be said to be a confirmation of the decree which it is merely carrying out. So, in the same way, when the mortgagor has failed to pay the amount mentioned in the decree, it is further decreed that the property be sold, and the subsequent order that the property be sold as the money has not been paid must also be held to be an order in execution and not merely a confirmation of the decree. To hold otherwise would be to hold that one part of the decree is final and that another part is not. There cannot be two final decrees on the same matter in any suit. So that, if the decree under Section 92 is a final decree in respect to the delivery of possession of the property to the mortgagor in case he pays, it is also final in respect to the sale of the property in case he does not pay. No doubt" the decree is a conditional decree, but the ascertaining which of its conditions has been fulfilled and the passing of orders consequent thereon cannot but be matters relating to its execution. It has been the practice of this Court to treat an application in execution for an order for sale in pursuance of a mortgage decree as tantamount to an application to make an order absolute for sale although these terms are not used. This could never have been permitted if it had been deemed necessary that before making an application for an order for sale in execution, a prior application for making the decree for sale absolute by an order had to be applied for and granted. So that the practice of this Court has been in accordance with the principle that a decree for sale is a final decree and the order for sale, whether it be called absolute or not, is obtainable only in execution of that final decree.

30. In my view, Section 89 operates as a provision supplemental to chapter XIX of the Civil Procedure Code, so that a mortgage decree passed under Section 88 of the Transfer of Property Act may be executed on a scientific basis, and the application to the Court for an order absolute for sale is nothing but an application under Section 235, Civil Procedure Code, to work out in execution proceedings Sri Rajah Papamma Rao Bahadur v. Sri Vira Pratapa, Korkonada L.R. 23 I.A. 32 at p. 35 : I.L.R. 19 Mad. 249 at p. 253, Maharajah of Bharatpur v. Ram Ranno Dei L.R. 28 I.A. 35; I.L.R. 23 All. 181, Harendra Lal Roy Chowdhry v. Maharani Dasi L.R. 28 I.A. 89; I.L.R. 28 Calc. 557 at p. 565, the decree passed under Section 88 of the Transfer of Property Act. In all these three cases the Judicial Committee of the Privy Council refer to the enforcement of the conditional directions contained in the decree passed under Section 88 of the Transfer of Property Act as 'execution' of the same, and in the last of them, the order absolute passed by the original Court under Section 89 is referred to by the Judicial Committee as the granting of execution of the decree to the full amount. Section 89 is silent as to the contents of the application, whether it should be verified or not, and notice thereof given or not to the judgment-debtor, because these matters are fully provided for by Sections 235 and 248, Civil Procedure Code. A reference to the particulars given by Section 235 will show that an application for an order absolute for sale under Section 89 of the Transfer of Property Act must contain all such particulars. Particular 'j' after specifying certain reliefs which may be applied for, concludes 'or otherwise as the nature of the relief sought may require.' In the case of a mortgage decree as such under Section 88 none of the reliefs specifically mentioned in 'j' can be applied for, and the 'other' relief to be applied for will be an order absolute for sale of the mortgaged property. Whether or not notice of this application is to be given to the judgment-debtor or his legal representative will depend on the provisions of Section 248, Civil Procedure Code Tarapada Ghose v. Kamini Dassi 6 Calc. W.N. Appx. xxvii. The order of the Court under Section 89 should be to sell either the whole of the mortgaged property, or only a sufficient portion thereof specifying such portion in the order. Under Section 286 the sale will have to be conducted by an officer of the Court and made by public auction. As soon as the order for sale is passed, the duty devolves upon the Court to issue and publish a proclamation of the intended sale under Section 287, Civil Procedure Code, and the sale will have to be conducted and completed in the manner provided by the subsequent sections, a warrant of sale being issued to an officer of the Court in the form prescribed by Form No. 145 of the fourth schedule to the Civil Procedure Code.

33. That Section 89 of the Transfer of Property Act does not contemplate the passing of a 'decree absolute' by making absolute the decree which was passed only conditionally under Section 88, is placed beyond all doubt by the fact that the conditional decree in favour of the defendant--the mortgagor--against the plaintiff--the mortgagee--is not required to be made absolute by an application to be made by the defendant--the mortgagor--under Section 89. In every decree passed under Section 88, the defendant on payment, on or before the date fixed in the decree, of the amount found due and declared, is entitled to a recovery from the plaintiff of all documents relating to the mortgaged property, to a reconveyance of the property and, if necessary, to be put into possession of it. The defendant on fulfilling the condition of payment is of course entitled to the above reliefs by executing the decree, and, if so, why is Section 89 of the Transfer of Property Act entirely silent about any order absolute, at the instance of the defendant, for all or any of these reliefs? The reason is that the sections of the Civil Procedure Code relating to the enforcement of decrees for delivery of chattels or of immoveable property or for the execution of conveyances are ample in themselves and may be carried out without the aid of a supplemental provision in Section 89 of the Transfer of Property Act, as in the case of an order for sale of mortgaged property. I have already suggested the probable reason for this supplemental provision in Section 89 of the Transfer of Property Act in regard to an order for sale of mortgaged property. Be this as it may, the scope and object of Section 89 is not to convert a 'decree nisi' passed under Section 88 into a 'decree absolute,' or a 'preliminary decree' into a 'final decree.' If that were the object, it is inconceivable that it would be carried out only so far as the decree nisi or preliminary decree is in favour of the plaintiff and not in so far as it is in favour of the defendant and every decree under Section 88 is necessarily of this dual nature. The decree passed under Section 88 is the only and the final decree in the suit and Section 89 is only a supplemental provision for the effectual execution on a scientific basis, of such decree, in so far as it is in favour of the plaintiff, no such supplemental provision being considered necessary for the execution of the decree in so far as it is in favour of the defendant.

36. I do not think it necessary to refer to the arguments addressed by way of analogy on Sections 86, 87, 92 and 93 of the Transfer of Property Act, and to the various decisions that were cited bearing upon decrees and orders passed under those sections. In the view I take of the matter, I regard the provisions made in paragraphs 1, 2, and 3 of Section 87 as provisions for enforcing or executing the decree for foreclosure passed under Section 86 and the provisions in paragraphs 1, 2, 3, 4 and 6 of Section 93 as provisions for enforcing the decree for redemption passed under Section 92 of the Transfer of Property Act. But it is unnecessary to elaborate my view in regard to these decisions with reference to the English Chancery practice, and decisions, English and Indian, or express any decided opinion--especially as a reference has recently been made to a Full Bench for a reconsideration of certain decisions of this Court, which were strongly relied upon, in which it has been held that, notwithstanding that a decree for redemption of a mortgage has been passed, yet subsequent suits for redemption of the same mortgage could be maintained, if no order absolute for foreclosure had been passed in the meanwhile. I may, however, mention that I entirely dissent from more than one decision of this Court Vallbha Valiya Rajah v. Vedapuratti I.L.R. 19 Mad. 40; Narayana Reddi v. Papayya I.L.R. 22 Mad. 133 at p. 136; Elayadath v. Krishna I.L.R. 13 Mad. 267 at p. 268 in which it is assumed and held that the time fixed for payment in a decree for foreclosure or for redemption cannot be postponed under the proviso to Section 87 or 93 of the Act on the application of the mortgagor, unless he makes such application in answer to an application by the mortgagee for an order absolute for foreclosure, which application by the mortgagee can necessarily be made only after the expiration of the time fixed for such payment. The proviso contemplates 'postponement' of such day and I am clearly of opinion that the mortgagor can apply, and should ordinarily apply, for postponement, before the mortgagee applies for an order absolute for foreclosure after the expiration of the time so appointed, though according to decisions both in England and here the time, appointed may also be retrospectively postponed and extended even on an application made after the day appointed. Every such order of postponement is pro tanto within the meaning of Section 244 (c) Civil Procedure Code, an order relating to the stay of execution of the decree Hulas Rai v. Pirthi Singhi I.L.R. 9 All. 502 note; Rahima v. Nepal Rai 8 I.L.R. 14 All. 520. Until the mortgagee obtains an order absolute for foreclosure the action will be pending, though final judgment has been given, and it will be competent to the Court executing the decree on application made by the mortgagor, for good and sufficient cause, to extend the time for payment, whether such application be made before or after the day appointed for payment. And with all deference I dissent from the view taken by the High Court of Calcutta in more cases than one Poresh Nath Mojumdar v. Ramjodu Mojuumdar I.L.R. 16 Calc. 246; Ajudhia Pershad v. Baldeo Singh I.L.R. 21 Calc. 818 that the mortgagor can, even after the expiration of the time limited for redemption by the decree, redeem the mortgage on payment of the amount, without obtaining an extension of such time, so long as the mortgagee has obtained no order absolute for foreclosure. The question as to whether, in the absence of an order absolute for foreclosure, a fresh suit for redemption could be brought, is altogether a different one, the solution of which depends upon the scope and operation of the principle of res judicata and of Section 244, Civil Procedure Code. I am unable to see how any party seeking to enforce or execute a decree for redemption can claim to do so without complying with the conditions imposed by the decree, as conditions precedent for redemption. It is to mitigate the hardship that may be caused to the mortgagor by non-payment of the amount on or before the day fixed in the decree, that provision is made by Sections 87 and 93 of the Transfer of Property Act, empowering the Court executing the decree to extend the time fixed for payment.