Back
1958 Supreme(Pat) 119
PATNA HIGH COURT
V.Ramaswami and R.K.Choudhary JJ.
Inderchand Kazriwal
Versus
Raghuni Ahir
Civil Revision No. 978 of 1955 ;
Decided On : AUGUST 12, 1958
The attachment of a usufructuary mortgage should be made under Order 21, Rule 46 of the CPC, which applies to the attachment of debts, if the decree-holder wants to prevent the mortgagor from making the payment and the mortgagee from receiving the same.
Headnote:
ATTACHMENT - USUFRUCTUARY MORTGAGE - ATTACHMENT OF DEBT - ORDER 21, RULE 46, CIVIL PROCEDURE CODE - ORDER 21, RULE 54, CIVIL PROCEDURE CODE - DISTINCTION - INTERPRETATION.
Fact of the Case:
The petitioner, a decree-holder, sought to execute a money decree against the interest of his judgment-debtors in a rehan bond. The opposite party, who had purchased the plot in question from the heirs of the mortgagee, claimed that the attachment was invalid as it was not made under Order 21, Rule 46 of the Civil Procedure Code (CPC), which applies to the attachment of debts.
Finding of the Court:
The court found that the attachment under Order 21, Rule 54 of the CPC, which applies to the attachment of immovable property, was validly effected, but the attachment under Order 21, Rule 46 was invalid as a copy of the order prohibiting the creditor from recovering the debt and the debtor from making the payment was not affixed on some conspicuous part of the court house as required by Sub-rule (2) of that rule.
Issues: 1. Whether the attachment should have been made under Order 21, Rule 46 of the CPC or under Rule 54 of that Order. 2. Whether a usufructuary mortgage is an immovable property or a debt.
Ratio Decidendi: 1. Order 21, Rule 54 of the CPC does not prohibit the acceptance of the mortgage dues by the mortgagee or the payment thereof by the mortgagor. Therefore, an attachment under this rule would not prevent the mortgagor from making the payment and the mortgagee from receiving the same. 2. A usufructuary mortgage is a combination of a contract of debt and a conveyance by way of security for the payment of that debt. The existence of a debt cannot be taken away from the mortgage so long as it subsists. 3. If a decree-holder wants to attach a debt payable to his judgment debtor, he has to make attachment under Order 21, Rule 46 of the CPC. 4. In the present case, the usufructuary mortgage in question allowed the mortgagor to repay the mortgage money after the expiry of the due date of payment. Therefore, there was a debt which could be paid by the mortgagor to the mortgagee and in order to attach the same the attachment should have been made under Rule 46 of Order 21, Civil Procedure Code prohibiting the debtor from making any payment to the creditor.
Final Decision: The court dismissed the petitioner's application, holding that the attachment under Order 21, Rule 46 of the CPC was invalid and that the opposite party's claim was rightly allowed by the court below.
R.K.Choudhary, J.
1. This is an application in revision on behalf ot the decree-holder against an order of the learned Subordinate Judge, first court, Arrah allowing the claim of the opposite party under Order 21, Rule 58, of the C. P. C. The short facts are these. On the 2nd of June, 1949, one Bansrapan Sahu and others took a rehan bond for Rs. 850/ from one Sarwan Mahto with respect to three plots, one of which was plot No. 2597. The opposite party purchased this plot from the heirs of Bansropan by virtue of two sale deeds dated 15-6-1943, and they redeemed the above rehan by paying the entire mortgage money to the mortgagee on 6-6-1944. The petitioner had obtained a money decree against Bansropan Sahu and others, and in execution of that decree the petitioner sought to proceed against the interest of his Judgment-debtor in the aforesaid rehan bond. In execution of the decree an attachment under Order 21, Rule 54 of the Code of Civil Procedure was issued with respect to the above rehan property on 8-8-1941, and the same was served at the spot on 10-8-1941. A copy of this attachment was also affixed in the court house On 13-8-1941.
The petitioner also took steps for issue of attachment under Order 21 Rule 46 of the Code of Civil Procedure and the attachment under that provision was served upon the judgment-debtors on 3-11-1941. An attachment under this provision was also taken out against the heir of the mortgagor since deceased, and, according to the finding of the Court below this was served on him on 3-12-1941. The case of the petitioner is that the opposite party purchased the plot in question after the attachment referred to above had been effected and, therefore, they had no right to put forward any claim as against him.
The Court below held that the service of attachment under Order 21, Rule 54, was duly effected in accordance with law, but the attachment under Order 21, Rule 46 of that Code was invalid as a copy of the order prohibiting the creditor from recovering the debt and the debtor from making the payment was not affixed on some conspicuous part of the Court house as required by Sub-rule (2) of that rule. It also held that the attachment was of a debt which could only be made under Order 21, Rule 46 of the Code of Civil Procedure and not under Order 21, Rule 54 of that Code, and, as the attachment under Order 21, Rule 46 was invalid, it could not affect the sale taken by the opposite party. The claim of the opposite party was, therefore, allowed. Being thus aggrieved, the decree-holder has come up to this Court in revision.
2. As stated above, the finding of the court below is that there was no valid attachment under Order 21, Rule 46 of the Code of Civil Procedure, and this finding has not been challenged by Mr. Verma appearing for the petitioner. Rather, he has accepted the correctness of this finding which is supported by a Bench decision of this Court in Narendra Prasad Sinha V/s. Janki Kuer, AIR 1947 Pat 385. It was held in that case that the provisions of Order 21, Rule 46(2) being mandatory, the failure to comply with any one requirement thereof nullifies the whole proceeding, and the defect is not curable under Section 99. Thus, on the above finding in the present case there was no valid attachment under Order 21, Rule 46 of the Code of Civil Procedure. The court below, however, found that the attachment under Rule 54 of that Order was duly effected and this finding has not been challenged by Mr. Srideo Narain appearing for the opposite party. He has, however, contended that the decree-holder, while seeking execution of his decree as against the aforesaid mortgagees interest of his judgment-debtors sought to proceed against a debt and, therefore the attachment should have been under Order 21, Rule 46 of the Code.
On the other hand, Mr. Venna has contended that the interest of the usufructuary mortgagee is an immovable property and, therefore, the attachment could be only under Rule 54 of Order 2
