MANILAL RANCHHOD Vs. MOTIBHAI HEMABHAI

JUDGEMENT

(1.) The respondent No. 1 is the assignee of the rights of a mortgagee under a mortgage-bond executed in the year 1894. The bond created a usufructuary mortgage with possession and provided as follows:- The field is given in mortgage on receiving on security thereof Rs. 750. The money bears no interest and no rent shall be payable for the field. The period is fixed at ten years. You may cultivate or sub-mortgage the field during this period. I have no right thereto. After the expiration of the fixed: period when I repay the principal sum on the very day and in the very month in which I have received the sum you may give up the field in Vaishakh in that year. You should pay dues &c. and enjoy the produce. If any one causes obstruction or hindrance then I am to he answerable for the amount due in such manner us you may ask me to be answerable.

(2.) According to the rulings of this Court that document created a purely usufructuary mortgage and not a mixed mortgage of the character referred to in Parasharam v. Putlajirao (1909) I. L. R. 34 Bom. 128. It created no debt in respect of which the mortgagor could be sued except in the event of a breach of the covenant for quiet enjoyment contained in the bond. This being so there was no debt due from the mortgagor which could be attached under the provisions of Section 268 of the Code of 1882. The plaintiffs, however, as the holders of a money-decree against the assignor of the respondent No. 1, purported to attach a debt of Rs. 750, due by the mortgagor to the original mortgagee whose representative was the plaintiffs judgment-debtor, and having so attached the so- called debt, it was sold in execution and purchased by the plaintiffs.

(3.) It is contended on behalf of the respondent No. 1 that the attachment and sale gave the appellants no right to possession of the mortgaged land for which he sues, and that argument found favour with the learned Judge of the lower appellate Court.