Judgement

Appeal from a judgment and decree of the Court of the Judicial Commissioner (April 26, 1913) varying a decree of the District Court of Amraoti.

The appellant in 1909 sued the respondents upon a mortgage of lands and two houses executed by the first respondent on July 22, 1892. The other respondents had acquired interests in the property not material to this report.

Prior to the date of the mortgage part of the land included in it had been ordered to be sold in execution of money decrees against the first respondent, and the execution of the decrees had been transferred to the Collector under s. 320 of the Code of Civil Procedure, 1882. The execution of the decrees by the Collector under the provisions of ss. 320 to 325 was concluded in 1894. The respondents pleaded, inter alia, that by reason of s. 325A of the Code the first respondent

03 Law Rep. 45 Ind. App. 219 ( 1917- 1918)

Gaurishankar Balmukund V. C hinnumaya 104

was incompetent to execute the mortgage.

The additional District Judge held that the mortgage was void so far as it related to property included in that against which the decrees had been made ; he made a foreclosure decree confined to the mortgaged property not so included. His decree was subject to a condition arising out of facts not material to the present appeal.

Upon appeal to the Court of the Judicial Commissioner the decree was varied by omitting the condition above referred to, but in other respects was affirmed.

1918. June 13. De Gruyther K.C. and Parikh for the appellant. Sect. 325A affords no defence as regards the residue of the property returned to the judgment debtor upon the conclusion of the execution proceedings. The section only avoids alienations as against the Collector and those claiming under him. That vie3\r is in accordance with Magniram Vithuram v. Bakubai. (I. L. R. 36 B. 510.) The contrary view taken in the Central Provinces in Murray v. Muratsingh (( 1907) 3 Nagpur. R. 171.), in this case, and subsequently in Salu Bai v, Bajat Khan (13 Nagpur. R. 130.) is erroneous.

The respondents did not appear.

June 13. The judgment of their Lordships was delivered by

LORD SHAW OF DUNFERMLINE, By s. 325A of the Code of Civil Procedure (Act XIV. of 1882) it is provided that " so long as the Collector can exercise or perform in respect of the judgment debtors immovable property, or any part thereof, any of the powers or duties conferred or imposed on him by sections 322 to 325 (both inclusive), the judgment debtor or his representative in interest shall be incompetent to mortgage, charge, lease, or alienate such property or part except with the written permission of the Collector, nor shall any civil Court issue any process against such property or part in execution of a decree for money."

In the present case the two salient facts are simply these That in 1891 the Collector of the district came, under the Act, into possession of the property in question; and that, secondly, while he was still in possession of that property a mortgage upon it was granted on July 22, 1892, by the judgment debtor, It is now sought to make that mortgage operative in the appellants favour by reason of this. It is contended that s. 325A is not to be read in the complete and operative sense natural to the words, that is to say, of incompetency to mortgage such property, but must be read with an implied limitation. The limitation suggested is that there still remained in the judgment debtor a power to mortgage the property so as to become operative over any residue that might arise to the latter after the Collectors administration had ended. It is the fact that the Collectors regime has now ended, but it is also the fact that during his administration, namely, on July 22, 1892, the mortgage which is now founded upon was granted.

Their Lordships have been referred to authority upon this question. That which is founded on by the appellant particularly is the case of Magniram Vithuram v. Bakubai. (I. L. R. 36 B. 510.)