NARAYANA GOUNDAN Vs. APPAVU GOUNDAN

JUDGEMENT

(1.) Two decrees were obtained against one Appavu Goundan, a minor, with his mother Konammal as his guar. dian in O.S. Nos. 1114 and 835 respectively of 1922, on the file of the District Munsif of Udumalpet. In execution of the first (O.S. No. 1114) certain property was attached on 2 May, 1923. On 4 July 1923, Konammal on behalf of her son sought for permission under Order 21, Rule 83, to mortgage the property in order to satisfy the decree. Permission was granted by the Court on 5 July, and the mortgage was actually effected in pursuance of it on 19 August by Ex. A. Next day (20 August) the mortgage money was paid into Court by the mortgagee (Narayana Goundan) and the decree in O.S. No. 1114 was discharged. Meanwhile however on 19 July the decree-holder in O.S. No. 835 had also attached the same property and the property was in due course proclaimed and sold in pursuance of the attachment, one Kandasami Chetti becoming the auction-purchaser on 8th February 1924. In 1925 the mortgagee under Ex. A, brought a suit (O.S. No. 75 of 1925) to enforce his mortgage, impleading Kanda. sami Chetti as defendant 2. Defendant 2 pleaded that the mortgage having been executed during the pendency of the attachment ordered in the execution of his decree was by virtue of the provisions of Section 64, Civil P.C. not binding on him. Both the District Munsif of Udumalpet and the Subordinate Judge of Coimbatore on appeal have upheld this contention and dismissed the mortgagee's suit. The mortgagee has accordingly filed this second appeal.

(2.) On a mere comparison of dates it is of course obvious that the appellant cannot succeed, his mortgage having been effected one month later than the attachment in favour of defendant 2. But appellant takes his stand upon the language of Sub-section (2), Order 21, Rule 83, which contains the phrase "notwithstanding: anything contained in Section 64" and it is argued that what this sub-section means is that once a Court has granted a certificate to the judgment-debtor authorizing private alienation no one can make use of Section 64 to attack the title of the alienee when the alienation has been effected; or in other words that the mere issue of the certificate was enough to render the title of the alienee unassailable. It seems to us that this interpretation of the sub-section cannot be accepted. The whole of the first portion of that sub-section run" as follows: In such case the Court shall grant a certificate to the judgment-debtor authorizing him within a period to be mentioned therein, and notwithstanding anything contained in Section 64 to make the proposed mortgage, lease or sale.

(3.) It is clear from this that what is contemplated is the situation as it exists at the time of the issue of the certificate, and the sub-section must mean that in spite of the fact that the property in question has been attached, which would ordinarily invalidate any alienation according to the provisions of Section 64, yet in these particular circumstances that attachment shall not invalidate the alienation made in pursuance of the Court certificate. We entirely fail to see how the sub-section can possibly refer to an attachment made subsequent to the issue of the certificate or affect any claims enforceable under that subsequent attachment. That the issue of the certificate is itself enough to render the alienee's title unassailable is a position which cannot be maintained in view of the proviso with which Sub- section (2) ends: Provided that no mortgage, lease or sale under this rule shall become absolute until it has been confirmed by the Court.