Gopal Chundra Mittra and Others vs Srinath Dutt

Cunningham, J.—The question to be decided in this appeal is whether a debt secured by mortgage of Immovable property has been rightly sold in execution of decree, under the provisions of the CPC applicable to moveable property.

The learned Judge below has regarded it merely as a debt, and has held that it was rightly sold as moveable property. We feel some difficulty in adopting this view. A mortgage is not merely a debt; it represents a substantial interest in the mortgaged property, viz., the right of selling it, under certain conditions, in realization of the debt. It is obvious that if the debt alone, apart from the security, is sold in execution, the full value of the mortgage will not be realized. The case does not appear to be expressly provided for by the Code. We think that in such cases there should be an attachment u/s 274 as well as u/s 268. In the present case, as the debt alone was sold, a material irregularity producing substantial injury to the judgment-debtor appears to have occurred, and the sale must be set aside u/s 311, and the purchase money refunded u/s 315.

The appeal must be decreed with costs.