BIRENDRA NATH MITRA Vs. UMA CHARAN BANERJEE

JUDGEMENT

(1.) This Rule arises out of an application to set aside a sale of a decree for Khas possession of immoveable property, under Order XXI, Rule 90, Civil Procedure Code. The Courts below have held that Order XXI, Rule 90, does not apply to such an application, in other words, that a decree for possession of a land is not immoveable property within the meaning of the rule.

(2.) Order XXI, Rule 53, Clause (i), lays down the procedure to be observed where the property to be attached is a decree either for the payment of money or for sale in enforcement of a mortgage or charge, while Clause (4) lays down the procedure where the property to be attached in execution of a decree is a decree other than a decree of the nature referred to in Sub-rule (1). Rule 54 describes the manner in which the attachment of immoveable property is to be effected and Sub-section (2) states: "The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode and a copy of the order shall be affixed on a conspicuous part of the property." Rule 67 says: "Every proclamation shall be made and published, as nearly as may be, in the manner prescribed by Rule 54, Sub-rule (2)." The procedure laid down, for the attachment or proclamation of sale in respect of an immoveable property cannot, therefore, be applied to a decree, whatever might be its nature. Then there are certain other rules prescribed in connection with sales of immoveable property which also cannot apply to a sale of a decree.

(3.) We have been referred to certain eases where the question whether the procedure laid down for attachment and sale of immoveable property is applicable to a mortgage decree was considered. In the case of drinath Dutt V/s. Gopal Chundra Mittra 9 C. 511 : 12 C.L.R. 445 : 4 Ind. Dec. (N.S.) 989 it was held that a debt secured by mortgage of immoveable property cannot be sold in execution of a decree under the provisions of the Civil Procedure Code applicable to moveable property. A different view, however, was taken in the case of Debendra Kumar Mandel V/s. Rup Lal Dass 12 C. 546 : 6 Ind. Dec. (N.S.) 371, where the learned Judges, Field and Macpherson, JJ., observed: "We think that it is impossible to say that a debt seaured by a mortgage by a lien upon immoveable property, more especially when the mortgagee is not in possession, can be regarded as immoveable property within the meaning of Section 274." A similar view appears to have been taken in the case of Kasinath Das V/s. Sadasiv Patnaik 20 C. 805 : 10 Ind. Dec. (N.S.) 542, where it was held that an attachment under Section 274 is not necessary to make the sale of a mortgage bond carry the lien as well as the debt.