Manilal Ranchhod vs Motibhai Hemabhai

Basil Scott, Kt., C.J.—The respondent No. 1 is the assignee of the rights of a mortgagee under a mortgage-bond executed in the year 1894. The bond created a usufructuary mortgage with possession and provided as follows:-

The field is given in mortgage on receiving on security thereof Rs. 750. The money bears no interest and no rent shall be payable for the field. The period is fixed at ten years. You may cultivate or sub-mortgage the field during this period. I have no right thereto. After the expiration of the fixed: period when I repay the principal sum on the very day and in the very month in which I have received the sum you may give up the field in Vaishakh in that year. You should pay dues &c. and enjoy the produce. If any one causes obstruction or hindrance then I am to he answerable for the amount due in such manner us you may ask me to be answerable.

According to the rulings of this Court that document'' created a purely usufructuary mortgage and not a mixed mortgage of the character referred to in Parasharam v. Putlajirao ILR (1909) 34 Bom. 128. It created no debt in respect of which the mortgagor could be sued except in the event of a breach of the covenant for quiet enjoyment contained in the bond. This being so there was no debt due from the mortgagor which could be attached under the provisions of Section 268 of the Code of 1882. The plaintiffs, however, as the holders of a money-decree against the assignor of the respondent No. 1, purported to attach a debt of Rs. 750, due by the mortgagor to the original mortgagee whose representative was the plaintiffs'' judgment-debtor, and having so attached the so-called debt, it was sold in execution and purchased by the plaintiffs.

It is contended on behalf of the respondent No. 1 that the attachment and sale gave the appellants no right to possession of the mortgaged land for which he sues, and that argument found favour with the learned Judge of the lower appellate Court.

We are of opinion that the lower Court''s decision is correct. In the case of a purely usufructuary mortgage where there is no debt payable by the mortgagor, the procedure by attachment u/s 268 is inapplicable. The procedure should be by attachment, u/s 274, of the interest in Immovable property and its sale in accordance with the provisions of the Code.

The pleader for the appellants has, however, relied upon the decisions of this Court in Baldev Dhanrup Marvadi v. Ramchandra Balvant Kulkarni ILR (1893) 19 Bom. 121 and Tarvadi Bholanath v. Bai Kashi CO. in which the decisions of the Madras High , Court in Appasami v. Scott (2) and of the Calcutta High Court in Debendra Kumar Mandel v. Rup Lall Dass (3) were followed.

It is to be observed, however, that the learned Judges in delivering judgment in Tarvadi Bholanath v. Bai Kashi were careful to point out that their decision was based upon the fact that the mortgagee was a mortgagee under a simple mortgage and was not in possession, and upon, that ground the decisions in the other cases which we have refeired to may be distinguished from that now before us.

We, therefore, affirm the decree of the lower appellate Court and dismiss the appeal with costs.