Papi Naidu (Deceased) and Others vs Subbaroya Chetty and Others

This appeal raises an important question as regards the validity of an attachment effected under Order XXI, Rule 46 of the Code of Civil

Procedure. The 1st defendant held an anomalous mortgage and under the terms of the mortgage deed, was in possession of the property. The

plaintiff obtained a decree against him, attached his interest in the mortgage under Rule 46, brought it to sale and purchased it in Court-auction. The

plaintiff as the purchaser of the 1st defendant''s mortgage interest, has brought this suit for possession and for mesne profits. As regards his claim to

possession, no question arises, as the property has since the suit been delivered to the plaintiff. The lower Appellate Court has passed a decree for

mesne profits not only against the 1st defendant, who does not appeal, but also against defendants Nos. 2 to 6, with whose liability alone we are

now concerned. I have said that the plaintiff himself became the purchaser at the Court sale; he obtained the sale-certificate on July 21, 1926, and

on the next day, i. e. on the 28th the 1st defendant leased the property to the 2nd. On the May 5, 1927, the present suit was commenced and the

property was delivered to the plaintiff on May 9, 1928. The mesne profits claimed are for the period between the date of the lease and the date of

the delivery.

Mr. Ramaswami Ayyangar for the appellant (the 2nd defendant) contends that, though by reason of the attachment under Rule 46 the mortgage

debt was validly attached, there was, so far as the right to possession was concerned, no legal attachment. It must now be taken as settled, that the

procedure to be followed as regards the attachment of a mortgage debt is that prescribed by Rule 46. The question arose whether a mortgage

debt was ''a debt not secured by a negotiable instrument"" within the meaning of that provision. The contention was put forward that a mortgage

was an interest in immovable property and that Rule 46 would not, therefore, apply; but that contention was rejected and the Courts held that a

debt secured by a mortgage was none the less a debt for the purpose of the rule in question. The earlier cases that arose, such as Karimunnissa v.

Phul Chand 15 A 134, Tarvadi Bholanath v. Bai Kashi 26 B 305 : 4 Bom. L.R. 18 Nataraja Iyer v. The South Indian Bank of Tinnevelly 13 Ind.

Cas. 91 : 37 M 51 : 10 M.L.T. 503 : (1911) 2 M.W.N. 590 : 22 M.L.J. 105 were in respect of simple mortgage debts; the argument that a

mortgage debt should be treated as immovable property was repelled, as I have said, in those cases and the judgments in Tarvadi Bholanath v. Bai

Kashi 26 B 305 : 4 Bom. L.R. 18, contain a lucid statement of the reasons for the view the learned Judges adopted. In those cases the question

was left open, whether or not a mortgage debt under a possessory mortgage could be attached under this provision; that question has since been

answered in the affirmative in Chullile Peetikayil Nammad v. Othenam Nambiar 26 Ind. CAS. 50 : 27 M.L.J. 239 and Ramaswami Moopan v.

Srinivasa Iyyangar 28 Ind. Cas. 284 : 39 M 389 : 28 M.L.J. 338. The effect of these decisions is shortly this: the attachment of a mortgage debt

operates not only on the debt but also on the security, which fastens itself to the debt; the security, therefore, follows the debt. In other words,

even granting that the interest of the mortgagee is immovable property, that interest arises from the debt and is ancillary to it, therefore, there is no

further necessity to attach the security as immovable property, when the debt has already been attached. In Manilal Ranchod v. Moti Bhar Hema

Bhar 10 Ind. Cas 812 : 35 B 288 : 13 Bom. L.R. 233, in the case of a usufructuary mortgage, a different view seems to have been taken, but that

decision has been distinguished by our Court in two cases: Ramaswami Moopan v. Srinivasa Iyengar 28 Ind. Cas. 284 : 39 M 389 : 28 M.L.J.

338 and Nataraja Iyer v. The South Indian Bank of Tinnevelly 13 Ind. Cas. 91 : 37 M 51 : 10 M.L.T. 503 : (1911) 2 M.W.N. 590 : 1911 22

M.L.J. 105 the ground of distinction being that in the Bombay case, it was assumed that the mortgagor had no right to pay and the mortgagee no

right to demand. But Mr. Ramaswami Ayyangar urges that the point he now raises, is uncovered by authority; what he contends is, that although

the debt has been validly attached under Rule 46, the right to possession has not been affected, because it can only be attached under Rule 54 as

immovable property. That is to say, according to him, the debt must be attached under Rule 46 and further, under Rule 51 the light to possession

must be separately, attached; there must thus be a two fold attachment. I think, on the authorities as they stand, I cannot accede to this contention.

According to both Tarvadi Bholanath v. Bai Kashi 26 B 305 : 4 Bom. L.R. 18, and Nataraja Iyer v. The South Indian Bank of Tinnevelly 13 Ind.

Cas. 91 : 37 M 51 : 10 M.L.T. 503 : (1911) 2 M.W.N. 590 : 1911 22 M.L.J. 105 the security follows the debt and it is difficult to distinguish

between one part of the security, i. e. the right to bring the property to sale and the other part of it, namely, the right to possession; indeed, the

expression ""security"", as used in Ramaswami Moopan v. Srinivasa Iyengar 28 Ind. Cas. 284 : 39 M 389 : 28 M.L.J. 338, is expressly made to

cover the right to possession, as the following passage shows:

On the other hand, the decision in Chullile Peetikayil Nammad v. Othenam Nambiar 26 Ind. CAS. 50 : 27 M.L.J. 239 proceeds on the basis that

where there is a debt payable by the mortgagor, the fact that the mortgagee is in possession of the land does not the less make it a debt, nor is the

mode of attachment of such debt affected by the collateral security for such debt even though that security may take the form of possession of the

property.

Mr. Ramaswami Ayyangar points out that some hardship results from the view I have taken. Under Rule 46 an attachment is effected inter alia

by a prohibitory order being served upon the debtor; but if the debtor happens to be at a place different from where the mortgaged property is,

there being no proclamation under Rule 54, the attachment is not brought to the knowledge of third parties. I cannot, however, allow

considerations of this sort to influence my judgment. As has been pointed out in Tarvadi Bholanath v. Bai Kashi 26 B 305 : 4 Bom. L.R. 18 by Sir

Lawrence Jenkins, C.J., even in the case of a simple mortgage debt, ""it may be that a more complete safeguard could be devised, but that is beside

the question."" If the hardship pointed out is real, that may be a good reason for the changing of the rule, but with that I am not here concerned.

In the result, the second appeal is dismissed and in this Court I direct each party to bear his costs.