BABHUTMAL Vs. MADHOJI

JUDGEMENT

(1.) THE fasts of this case are somewhat peculiar. In Civil Suit No. 105 of 1922, the appellant decree-holder (Seth Bhabutmal) obtained against the defendants final decree for sale in the mortgage suit. The property concerned included four fields and the decree specifically ordered that the future crops of these fields should be sold until satisfaction of the mortgage debt. On 16-1-1925 the decree-holder applied for sale of the crop of the year 1922. The Judge of the executing Court held that a mortgage of future crops was tantamount to an agreement to assign the crops when they came into existence and he was of opinion that by virtue of the mere agreement the decree-holder could not proceed against the crops in the absence of any personal decree having been passed against the judgment-debtors. He accordingly rejected the execution application.

(2.) THE decree-holder appealed to the Court of the District Judge, Bhandara, who was of opinion, relying on Raghunath Rao v. Moti [1897] 10 C.P.L.R. 87, that a mortgage of future crops was only of the nature of an agreement to mortgage such crops hereafter when the property comes into existence. As the decree did not direct the sale of any particular crops then in existence and was, in effect, a mere transcript of the relief claimed in the plaint, the Judge of the lower appellate Court was of opinion that the decree was a nullity in this connexion.

(3.) FOR my own part, I am of opinion that the position of the appellant in this connexion is correct. It is, no doubt, true that a judgment-debtor may, in certain cases, offer objection to the effect that certain property of his is not saleable in the case of a money decree, and such objection may, in certain circumstances, be urged even after the confirmation of sale. The case of a mortgage decree is, however, in my opinion different. An attack on such a mortgage decree to the effect that property ordered to be sold by it is not legally saleable, is, in reality, an attack upon the validity of the decree. The executing Court was, in my opinion, bound to assume in this connexion that the decree, had been made with jurisdiction and to allow an executing Court to hold that property specifically ordered to be sold by it was, in reality, not saleable, would, in my opinion, amount to rendering the said decree so far a nullity.