JANG BAHADUR Vs. BHAGAT RAM-SHEO PRASAD

JUDGEMENT

(1.) This a judgment-debtor's appeal arising under the following circumstances: The appellant, Jang Bahadur, held an usufructuary mortgage over a considerable property, the amount of the mortgage being over Rs. 35,000. The respondents, holding a simple money decree against the appellant, got the interest of the appellant as mortgagee attached and sold. The sale was effected for Rs 2,500 only and the respondents them selves made the purchase. The appellant applied for the setting aside of the sale on the ground of fraud. The application was not heard on the ground that Order 21, Rule 89, Civil P. C, had no application, inasmuch as the property sold was moveable property. The appellant challenges the correctness of this decision and the only question which we have to, answer in this appeal is whether the mortgagee's interest in a usufructuary mortgage is, immovable property within the meaning of Rule 89, Order 21, Civil P.C.

(2.) In our opinion the answer to the question can be found out, from two sources. Either the answer will be furnished by the Transfer of Property Act which defines a mortgage or from the General Clauses Act which defines immovable property. Whichever source, we look into, we find that the answer will be the same. Under Section 58, T.P. Act, a mort gage is a transfer of an interest in an immovable property. It follows, therefore, that what the mortgagee holds is a part of the interest in immovable property originally owned by the mortgagor. If we look to the definition given in the General Clauses Act (for the Civil Procedure Code itself gives no definition) we find it as follows: Immovable property shall include laud, benefits to arise out of laud, . . ..

(3.) The definition of usufructuary mortgage as given in Section 58, T.P. Act, shows that the mortgagee is entitled to take possession of the property and to receive the rents and profits in payment of his mortgage money. Obviously, his interest is something which arises out of land. It has been conceded before us that at the date of the attachment and sale the judgment-debtor was in possession and his name was recorded in the khewat.