SURENDRA KRISTO RAY Vs. GOOROO PRASAD GHOSE

JUDGEMENT

(1.) This is an application under Order XXI, Rule 89, of the Civil Procedure Code in respect of an English mortgage executed in Calcutta upon which a decree for sale has been made by this Court;. There was no attachment before sale. For, according to the practice of this Court, no gush attachments are made in execution of mortgage-decrees. The question raised is whether Order XXT, Rule 89 applies to the case. Such an application is contrary to the practice is not provided for and is in respects at variance with the rules of this Court and is without authority for the case before Cbaudhuri, J., was (my learned brother tells me) by consent of all parties concerned and not after contest. Mention has been made of some case before Imam, J. but there was no judgment and what the circumstances of that case were and whether it was contested does not appear. The decision in Kedar Nath Raut v. Kali Churn Ram 25 C. 703 : 2 C.W.N. 353 : 13 Ind. Dec. (N.S.) 460 is against the application. Since then the new Code has been enacted. I must, therefore, determine whether that order has abrogated the practice of the High Court and the Rules which express it. The question has greater importance than a mere matter of regularity of practice, for a disturbance of that practice would involve an alteration in the rules which have only recently been approved by the Judges and is likely to interfere with the sales by this Court. The conditions and practice existing as regards such sales are different from those prevailing in the mofussil. Good prides are fetched at such sales owing to the procedure here adopted, the security of title and certainty in the procedure. There is a considerable risk that the values of property will be affected if it is understood that it is open to the mortgagor to apply to set aside the sale on payment under Rule 89.

(2.) These considerations are sufficient to make one cautious in reversing established practice. It may, however, have been the intention of the Legislature to do so and, therefore, we must examine the Code itself.

(3.) Rule 89 refers to a "sale in execution of a decree." When we turn to Rule 64, which deals with "sales generally", we find that a Court may sell in execution any property attached by it and liable to sale. Properties are not attached under mortgage-decrees of this Court and in fact there has been no attachment in this case. If Rule 89 applies, it will be necessary to alter the practice in this respect. It has bean argued that Order XXXIV now incorporates the provisions of the Transfer of Property Act relating to mortgages and that this is a sale in execution of a decree and that Rule 89 of Order XXI, therefore, applies.