NATHUBHAI MOTILAL Vs. BAI UJJAM

JUDGEMENT

(1.) This is an appeal from an order passed by the District Court of Broach on the 26 March 1907.

(2.) The acting District Judge described the appeal before him as being from the lower Court's order directing execution to proceed. The order he intended to describe was one of the 22nd October 1906, and that was an order for attachment of property.

(3.) The learned Judge reversed this order for attachment and rejected this darkhast. The ground of his decision wasthat he thought Secs.99 and100 and Section 67 of the Transfer.of Property Act made it necessary that a suit should be brought under Section 67. It may be a question as to whether or not one of the properties can be regarded as property in relation to which the applicant is a mortgagee within the meaning of Section 99 of the Transfer of Property Act. But with that we have no concern at this stage. Even if he be a mortgagee, he still is entitled to attach the property. Section 99 contemplates an attachment by him: for it provides that where a mortgagee in execution of a decree for the satisfaction of any claim whether arising under a mprtgage or not attaches the mortgage property, he shall not be entitled to bring such property to sale otherwise than by instituting a suit under Section 67. Therefore the learned Judge of the District Court was wrong in reversing the order for attachment and rejecting the darkhast.