BAIJU LAL MARWARI Vs. THAKUR PRASAD MARWARI

JUDGEMENT

(1.) The material facts of this case may be briefly stated as follows: By three deeds of mortgage executed in 1909 and 1910 the defendants third party hypothecated their entire interest in the two estates, namely Mahal Ghat Lachhmipur and Mahal Kuraba mentioned in Schedule A of the plaint to the second group of the defendants first party who may be called the Mahton defendants. Subsequently these Mahton defendants assigned their 8 annas interest in the mortgages to the first group of the defendants first party who may be called the Marwari defendants. The present plaintiffs in execution of a money decree against the defendants third party attached certain shares in the said two estates on 26th March 1917 and purchased the same on 9 September 1918 and obtained delivery of possession on 16 November 1919. In the meantime, on, 1 February 1918, the defendants first party brought two mortgage suits on the aforesaid mortgage deeds against the defendants third party and obtained decrees on 18th December 1918. In execution of these decrees they purchased the mortgaged properties on 28 May 1923 and obtained delivery of possession on 21 and 23rd December 1923. The plaintiffs being thus dispossessed filed an application under Order 21, Rule 100, Civil P.C., before the Subordinate Judge of Godda, but meanwhile the settlement operations in Santal Parganas having been notified, the application was ultimately transferred to the settlement Court for disposal by order of this Court in view of the special provisions of law in the Santal Parganas. Eventually the application was dismissed by the order of the Divisional Commissioner dated 4 August 1927. The plaintiffs thereupon instituted the present suit on 30 July 1930 claiming among other reliefs possession of the disputed properties upon redemption of the mortgages on the ground that they as attaching decree-holders were necessary parties to the mortgage suits and not having been made parties, their rights were not affected by the mortgage decrees and sale. The defendants second party were impleaded as they got themselves recorded in the settlement proceedings as co-sharers with the defendants first party.

(2.) It may be mentioned here that the defendants third party by virtue of a compromise with the defendants first party got the lands specified in Schedule B of the plaint which appertain to Mahal Ghat Kuraba, and these lands were recorded during the settlement proceedings as their raiyati lands. The plaintiffs sought a declaration that such record was illegal and the defendants third party could not acquire any raiyati right in those lands. The plaintiffs claim with regard to these lands, though negatived by the Court below, has not been pressed in this appeal and no further reference to it will be necessary. The main contest in the suit was by the defendants first party whose defence inter alia was that the plaintiffs were not necessary parties to the mortgage suits, that the mortgage decrees and the sale held in execution thereof are binding on them, that their purchase during the pendency of the mortgage suits is affected by lis pendens, that they have no right to maintain this suit and that the suit is barred by limitation. The learned Subordinate Judge has given effect to all these defences and dismissed the suit. Hence this appeal by the plaintiffs.

(3.) The most important point for consideration in this appeal is whether the plaintiff as attaching decree-holders were necessary parties to the mortgage suits under Order 34, Rule 1, Civil P.C. The learned advocate, Mr. L.K. Jha appearing for them, contends, in the first place, that an attachment followed by an order for sale creates a charge on the attached properties and therefore an attaching decree- holder is a necessary party to a mortgage suit and, in the second place, that under the specific provision of Clause 91(f), T.P. Act, as it stood before the amendment of 1929 an attaching decree-holder had the right to redeem and therefore he had an interest in the right of redemption within the meaning of Order 34, Rule 1, Civil P.C. The nature and effect of an attachment will have to be determined with reference to the provisions of the Civil Procedure Code. The mode of effecting attachment of immovable property is prescribed in Order 21, Rule 54 of that Code as follows: Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge. The effect of an attachment, as laid down in Section 64 of the Code, is that any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.