JOTIRMOYEE DEBI Vs. RAGHUNATH PATHAK

JUDGEMENT

(1.) This is an appeal against an order passed by the learned Subordinate Judge of Rajmahal, refusing an application by the plaintiff-appellant to issue attachment before judgment against certain properties other than the mortgaged, properties belonging to the defendant, plaintiffs, mortgagor. Although no cause was shown against the attachment before judgment, the learned Subordinate Judge was of opinion that in mortgage suit there can be no attachment before judgment of any property other than the mortgaged property. This opinion is undoubtedly wrong [see, for example, the decision in Jogemaya Dassi v. Baidyanath Pramanick, (1919) 46 Cal. 245.] There is no reason why, if the mortgaged property is not a sufficient security and the mortgagee will have to claim a personal decree eventually, he should not have attachment before judgment of properties other than the mortgaged properties, if he satisfies the Court that circumstances entitling him to such an attachment exist. In the present case, it must be taken that he did satisfy the Court, because no cause was shown by the mortgagor.

(2.) I would, therefore allow this appeal and remand the case to the learned Subordinate Judge with a direction that he should issue an attachment of the properties specified in the plaintiff's petition, or such portions thereof, as appear to him sufficient to satisfy any decree which may be passed in the suit. The appellant is entitled to the costs of the appeal. The application in revision is dismissed.

(3.) A question has arisen as to the representation of the respondents Nos. 6 and 7 who are minors. It appears that Mr. Bindheshwari Prasad, a Vakil of this Court was appointed guardian on the 12th of May, 1924. Subsequently, the respondents entered appearance under the guardianship of the karta of their family, viz., respondent No. 2. But respondent No. 2 was never appointed guardian of these minors and they must be taken to be represented by Mr. Bindheshwari Prasad, Vakil, the guardian appointed by the Court.