DEBI DAS Vs. MAHARAJ RUP CHAND

JUDGEMENT

(1.) In my opinion this appeal must be allowed. I wish to make it clear that I am deciding this case and no other; but I find insuperable difficulty in getting over the terms of the order in this case of the 11 of August 1917 and the reasoning in the Madras case to which I am about to refer, and the subsequent Madras authority which took the view which I take, in another case which came before them. We have not the application actually before us which was made by this mortgagee, but the facts are really not in dispute.

(2.) There was a mortgage. The mortgagee, therefore, had a right and interest in the property attached. There had been an attachment and if the attachment was continued and the execution took its ordinary course, there would necessarily be a sale. That is by practice, by common experience and by ordinary business considerations the proper time for the mortgagee to draw the attention of the Court to the existence of his right or claim. It may well be that he does not object to the attachment per se. It may be that he considers that he is adequately secured but a finding after enquiry in favour of his mortgagee rights and a continuance of the attachment and an order for sale subject to the mortgage very much simplifies his position and his opportunity for enforcing his legal rights, and removes the risk of further litigation; in addition an application for an order against the mortgagee where the property is said to be of less value than the mortgage-deed, would probably result in the Court holding its hand and refraining from the idle farce of selling what did not exist, namely, the debtor's pecuniary interest or the market value of the equity of redemption. It seems to me, therefore that the Code contemplated and did its best to provide the most convenient and expeditious way of dealing with the mortgagee rights, where mortgaged property has been attached, and, the necessary corollary to Rule 58 of Order 21, which certainly treats the claim or objection as though it were made to the attachment in to, are Rr. 62 and 63 which direct what the Court shall do when a question is raised as to the existence of the mortgage; and although the mortgagee may not desire to object to the attachment intoto or expect success, if he does so, he must in order to raise his claim object to the attachment in some form or another and what the legislature contemplated, no doubt, was in Rule 62 something of this kind, the Court would say to the mortgagee "there is no real objection so long as your right is protected" and the mortgagee would reply: That is so, I have objected in order to obtain what I really want, namely a direction from the Court that the property be sold subject to my mortgage, and as a necessary consequence Rule 63 provided what was to happen when the mortgagee failed to satisfy the Court that there was any mortgagee right to be protected, and therefore, it provided that where a claim or an objection is preferred the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive.

(3.) It is idle to say that this is either dangerous or a summary method of disposing of the mortgage. It is only summary in a provisional and temporary sense. The mortgagee's rights of suit are preserved. It is only conclusive if he does not choose to assert them. One of the evils of usufructuary mortgages in these provinces is that the mortgagees sleep on their rights until the property is eaten up by interest and the ancestral property of the mortgagor leaves the family for ever, and it is obvious and the Privy Council have, I think, emphasized the point that by these provisions the legislature intended to accelerate decision in execution cases add to screw up mortgagees to assert their rights and not to go to sleep. In this particular case the mortgagee failed to satisfy the Court. What happened is sufficiently shown by the order which runs as follows: The process-fee has been paid (but) the mortgage-deed has not been filed in spite of the time that was given twice. The applicant is also absent to-day. There is no such incumbrance given is the report of the Sub-Registrar. The application be disallowed in default of the applicant.