RAMASAMI MOOPAN Vs. SRINIVASA IYENGAR

JUDGEMENT

(1.) The question involved in this appeal is whether the plaintiff is entitled to claim that he has asubsisting usufructuary mortgage on the properties referred to in the plaint: or whether the 2nd defendant can claim that he has acquired not only the equity of redemption but also the mortgagee s interest. The decision of this question depends upon whether the mortgagee s interest in the property was validly attached and sold in execution or whether the attachment was invalid. After the alleged attachment of the mortgagee s interest upon which the defendant relies the plaintiff paid off the mortgage amount and purported to redeem the property. The plaintiff claims that the redemption was valid as the attachment was invalid; and the defendant claims that the alleged redemption was void under Section 64 of the new Code of Civil Procedure, as the property had been attached prior to the alleged redemption.

(2.) The learned pleader for the defendant relied up on the terms of Section 64 of the new Code of Civil Procedure and invited us to hold that inasmuch as the section does not state that the attachment referred to therein must be a valid attachment it is immaterial whether or not it is valid; that the payments therein referred to must be held to be void as soon as an attachment is purported to be made irrespective of the validity of the attachment. We are unable to accede to this argument as stated. It is unnecessary in the present case to consider whether the section cannot operate if there is any irregularity whatsoever in the attachment. It may be that some irregularities may not vitiate the attachment for the purposes of Section 64 of the new Code of Civil Procedure. But in the present case the alleged cause of invalidity cannot be described as a mere irregularity as between the parties now before us. The attachment must be held to be either entirely void or entirely valid.

(3.) The contention of the plaintiff is that the interest of the usufructuary mortgagee was attached as though it was immoveable property under Section 274 of the old Code of Civil Procedure 1882 (Order 21. Rule 54 of the present Code); and that it ought really to have been attached as a debt under Section 268 of the old Code of Civil Procedure (Order 21, Rule 46 of the present Code). The substantial difference between the two modes of attachment (so far as at present material) is that under Section 268 the mortgagor would have received a written order of the Court prohibiting him from making the payment to the mortgagee; and under Section 274 he received no such order, nor any notice of the attachment. The mortgagor therefore can reasonably claim that the payment which he has made in ignorance of the attachment cannot be held to be void if he was entitled to proceed on the basis that there was no attachment of the mortgagee s interest because if there had been an attachment in the form in which the law entitled him to expect it to be made he would have been prohibited from making the payment and he was not so prohibited.