SHEO NARAIN PRASAD Vs. JAWAHIR LALL, CLAIMANT

JUDGEMENT

(1.) The petitioners instituted a suit for recovery of money against one Kanhaiya Lai and applied for attachment before judgment of a shellac factory belonging to the defendant. After the attachment had been effected, the opposite party applied for release of the property from attachment on the ground that he had a usufructuary and a simple mortgage on the factory, each for Rs. 3000, both mortgages having been executed long before the institution of the plaintiffs suit. The plaintiffs opposed the application of the opposite party for release of the property from attachment, alleging that the mortgages of the opposite party were sham transactions and not genuine transactions. The plaintiffs contention succeeded with the result that the opposite party's application was dismissed and the property remained under attachment. The opposite party moved this Court. Their application was heard by Khaja Mohamad Noor, J.: see C.R. No. 597 of 1937 on 21 January 1938. Khaja Mohammad Noor J. held that the opposite party's application was premature and that the inquiry into his claim should be postponed "till the time comes for the sale of the mortgaged property." His Lordship went on to observe, however, that "the attachment of the property to the extent of the interest of defendant whatever that may be will continue" and that when occasion arose for the sale of the interest of the defendant, whatever that might be, in the property attached, that would be subject to the decision of the claim of the petitioner. Thereafter, the plaintiffs obtained a decree against the defendant for Rs. 9216 and, in execution of that decree, put up for sale the factory in question and purchased it themselves. The opposite party's claim for release of the property from attachment was then revived and, on a consideration of the evidence adduced in support of it the Court below has released from attachment the factory and the moveable property in it. Against that order the plaintiffs have moved this Court.

(2.) It is contended on behalf of the plaintiffs that a usufructuary mortgagee is incompetent to maintain an objection to an attachment inasmuch as the law does not expressly provide for such objection being maintained and that it is not necessary for a usufruc tuary mortgagee to object to an attachment in execution of a money decree for his interest cannot be affected by such attachment. Reference is made to the decision in Biswanath Patra V/s. Lingaraj Patra A.I.R. 1922 Pat. 408 the headnote of which is: A person in possession of property under an usufructuary mortgage is not entitled to object, under Order 21, Rule 58 Civil P.C., 1908, to the attachment of the property at the instance of a person who holds a decree against the mortgagor, and therefore when such an objection has been made and disallowed, Rule 63 does not debar the objector from making an application under Rule 100.

(3.) The plaintiffs also rely on the Full Bench decision in Sunder Prasad Singh v. Deodhari Singh A.I.R. 1937 Pat. 63 in which the decision to which I have just referred was confirmed. That case was referred to the Pull Bench for consideration of the decision in Biswanath Patra V/s. Lingaraj Patra A.I.R. 1922 Pat. 408 which was found to be in conflict with decision in other Courts. Two questions were referred to the Full Bench (1) when a mortgagee in possession has filed an objection under Rule 58 of Order 21, Civil P.C., against the attachment of immovable property and has allowed the objection to be dismissed for default, is his subsequent application under Order 21, Rule 100, complaining of dispossession after the property has been sold and possessions delivered to the auction purchaser barred by Order 21, Rule 63? And (2) was Biswanath Patra V/s. Lingaraj Patra A.I.R. 1922 Pat. 408rightly decided? The Full Bench answered the first question in the negative and the second question in the affirmative. On behalf of the opposite party in this case, it is contended that neither the Full Bench nor the Division Bench of this Court has held that an objection under Rule 58 is not maintainable by a mortgagee in possession; but all that has been decided by the two cases to which I have referred is, that, if an objection under Rule 58 is made by a usufructuary mortgagee and is dismissed, the latter is nevertheless entitled to maintain an application under Rule 100 when he is actually dispossessed, and such an application is not barred by Rule 63. It may be conceded that that is in effect the actual decision in these two cases. But, in order to reach that decision, both, the Division Bench and the Full Bench held that it was not open to a usufructuary mortgagee to make an application under Rule 58. It has been suggested that a different interpretation has been put upon the Full Bench decision by a Division Bench in Raghubir Prasad V/s. Ram Nath Singh A.I.R. 1939 Pat. 21. That however was not a case of a usufructuary mortgage but of a simple mortgage and in fact Wort, A.C.J. observed that makes a considerable and substantial difference.