A. Thiyagarajan by power agent A. Swarnambal, Tirupattur vs R.V. Swaminathan (died) and 11 others

K. Govindarajan, J.—The first respondent filed a suit in O.S. No. 21 of 1966, on the file of the Sub-Court, Sivaganga to recover certain

amounts from the second respondent. The suit was decreed. Pursuant to the decree, the first respondent filed E.P. No. 75 of 1980 to execute the

same. In the said execution proceedings, the appellant herein filed E.A. No. 58 of 1982 under Order 21, Rule 58 of the CPC claiming that the

second respondent mortgaged the said property on 24.10.1977 to the appellant and obtained a sum of Rs. 20,000/- on the basis of the said

usufructuary mortgage. The appellant claims that he has been in enjoyment of the property in question. The second respondent contested the

petition stating that he discharged the mortgage by paying the money on 28.1.1981.

The lower Court in its order dated 4.8.1983 held that the mortgage is in force and not discharged as claimed by the second respondent, and, on

mat basis, the application filed by the appellant was allowed. The second respondent herein filed an Appeal in C.M.A. No. 145 of 1983 on the file

of the learned District Judge, Ramanathapuram at Madurai. The learned District Judge though concurred with the finding of the lower Court

regarding the subsistence of the mortgage, rejected the petition on the ground that the petition filed under Order 21, Rule 58 of the - Code is not

maintainable at the instance of the appellant, and on that basis dismissed the appeal. Aggrieved against the same, the appellant has filed the above

appeal.

In view of the concurrent findings of the Courts below, that the mortgage had not been discharged as claimed by the second respondent and that

the mortgage is in force, this Court has to decide the issue raised on the basis of the said findings.

The mortgagee, therefore had a right and interest in the property attached, as the mortgage is in force. If the attachment was continued and the

execution took its ordinary course, there would necessarily be a sale. So, in a proper time, the mortgagee has to draw the attention of the Court to

the existence of his right or claim. By filing such a petition, it cannot be meant that he objects to the attachment per se. The mortgagee, when the

mortgage is in force considers that an order for sale subject to the mortgage very much imperils his position and his opportunity for enforcing his

legal rights, and removes the risk of further litigation. This is the convenient and expeditious way of dealing with the mortgagee''s rights, where

mortgaged property has been attached as contemplated in the Code.

In Emperor v. Himayatulah (AIR 1927 Allahabad 593) the Division Bench, while discussing about the Court''s duty when the question is raised

as to the existence of the mortgage, has held as follows :-

The necessary corollary to R.58 of O.21, which certainly treats the claim or objection as though it were made to the attachment in toto 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 in toto or expect success, if he does so, he must in order to raise his. claim object to the attachment in some

form or other arid what the legislature contemplated, no doubt, was in R.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 R.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.

In the present case both the Counts below concurrently found that the mortgage is in force. So, as stated above, I need not go into the question

what the mortgagee has to do when he failed to satisfy the Court what there was a mortgage which has to be protected as contemplated under

Order 21, Rule 66.

It is the duty of the Court to use all possible materials before it while drawing up the proclamation of sale which still gives such information of the

property of the sale as may be given as fairly and accurately as possible. The appellant in this case has filed the application only to bring to the

notice of the Court to do its duty as contemplated under the Code. The objection now filed by the appellant that the attached property should be

subject to the mortgage, in effect, is an objection that inasmuch as the whole rights inherent in or to the attached property are not liable to

attachment or sale in execution of the judgment-debtor''s decree, the property should either be released from attachment or the attachment of the

property should only be continued subject to the mortgage. The appellant did not ask for release of the property. He had asked for the

continuation of the attachment being made subject to the mortgage.

In the said decision cited supra (AIR 1927 All. 593). While considering the scope of the application under Order 21, Rule 58, it has been held

as follows:-

Indeed the words in R.58 ''on the ground that such property is not liable to attachment'' must, in my opinion, have reference merely to a case

where ''an objection is made to an attachment'' and not reference to a claim preferred to the property under R.58 would be an objection liable to

adjudication by the Court if such claim were inconsistent with the continuation of an unqualified attachment, although consistent with a qualified

attachment.

In view of the above, the order of the lower appellate Court that the application under Order 21, Rule 58 cannot be maintained, cannot be

sustained in law. Hence the order of the lower appellate Court is set aside and the order of me lower Court passed in E.A. No. 58/82 in E.A. No.

75 of 1980 in O.S. No. 21 of 1966, dated 4.8.1983 is restored. Consequently this C.M.S.A. is allowed. No costs.