MAHARAJ BAHADUR SINGH Vs. NOSHARAN BIBI

JUDGEMENT

(1.) In this case the decree-holder-petitioner attached certain property belonging to the judgment-debtor. The opposite party laid a claim to the property attached on the ground that ho was a usufructuary mortgagee in possession and prayed that the attachment might be withdrawn. There was an investigation and Court below allowed the claim and passed the following order regarding attachment: As a usufructuary mortgagee in possession, the claimant is entitled to an order of removal of attachment. The claim is allowed. The attached property be released from attachment.

(2.) This Rule has been obtained to have this order set aside.

(3.) It is urged by the petitioner that the order is wrong in law. He contends that what he attached was the interest of the judgment-debtor in the property. That interest has now been found to be only the equity of redemption and his attachment ought to be confined to that interest. The whole attachment ought not to have been withdrawn but that the equity of redemption should have been withdrawn but that the equity of redemption should have been sold in execution of the decree. In my opinion, this contention is not correct; under Order 21, Rule 58 a claimant comes before the Court and alleges that the property is not liable to be attached. The property in this case was that entire interest of the judgment-debtor in the property attached and the usufructuary mortgagee under Section 58 came to Court and asked that that interest could not be attached as he was in possession of it. The Court had to investigate that claim and come to a finding under Rule 60 as to whether the claimant was in possession of the attached property. If the claimant was in possession of the attached property, the Court was bound to release the attachment. It, therefore, follows that in this case the Court was right in directing the release of the attachment. This view was adopted so long ago as 1873 in the case of Kassirav V/s. Vithaldas 10 B.H.C.R. 100. This was followed by Farran, C.J., in the case of Parashram Harlal V/s. Govind Ganesh (1897) 21 Bom. 226. There the learned Chief Justice observed, as follows: The attachment of such property is effected under Section 274 of the Code (O. 21, Rule 54) by an order prohibiting the judgment-debtor from transferring or charging the attached property in any way and all other persons from receiving the same from him by purchase, gift or otherwise, such order being proclaimed and notified as there directed. The property to be attached should, however, be not the mortgaged property itself, but the equity of redemption of the mortgagor or as it is called in Section 60, T.P.A., the right of the mortgagor to redeem the mortgaged premises. This is not vested in the mortgagee nor does he hold it in trust for the mortgagor. When the right to redeem only is attached, the mortgagee cannot come in and ask to have the attachment raised under Section 280 (Order 21, Rule 80). It is otherwise when the property itself is attached as it was in the case of Kassirav Sahib Holkar V/s. Vithaldas Mangalji 10 B.H.C.R. 100 referred to above.