P.A.S. Arunachalam Chettiar vs Bagyam alias Pichammal and Another

Natesan, J.—The unsuccessful claimant in a claim suit arising out of proceedings in execution of a money decree in Original Suit No. 180 of

1952 on the file of the District Munsif''s Court, Sattur, against the second Defendant in these proceedings is the Appellant in the second appeal.

The property in the suit belonged to one Sundaram Pillai who settled the suit property and other properties on his daughter, the second

Defendant and her daughter Muthakshi Ammal enabling the children of the latter to ultimately succeed to the properties. After the death of

Muthakshi Ammal leaving two daughters under the care and protection of the second Defendant, the second Defendant effected an othi of

property for Rs. 3,000 on 20th January 1950 purporting to be on behalf of herself and her grand-daughters as and for necessities in favour of the

present Plaintiff. The second Defendant got back a lease of the property on a monthly rent of rupees twenty-seven. On her defaulting to pay the

rents, the Plaintiff filed the suit, Original Suit No. 180 of 1952 for the arrears of rent due till 16th August 1952. Along with the plaint he applied for

attachment before judgment in Interlocutory Application No. 482 of 1952 and the attachment was effected on 8th September 1952. The

Plaintiff�s effort to get back possession of the property by eviction under the Madras Buildings (Lease and Rent Control) Act failed for reasons

which, it is needless to advert to here and thereupon he instituted the suit, Original Suit No. 29 of 1957 on the file of the District Munsif''s Court,

Sattur, on the foot of the mortgage. The plaint adverted specifically to the suit Original Suit No. 180 of 1952 instituted for recovery of arrears of

rent due till 16th August 1962 and claimed interest on the mortgage amount at nine per cent per annum from 16th August 1952. A mortgage

decree was given in the suit limited to the interest of the second Defendant in the properties, and taking note of the decree in Original Suit No. 180

of 1952 above referred to, interest was awarded only subsequent to 16th August 1952. It is stated that the Plaintiff attempted to bring the

mortgaged property to sale under the mortgage decree and a sale was actually held on 20th January 1959 at which the Plaintiff himself became the

successful bidder. But before the sale was confirmed the Plaintiff was paid off the amount due under the mortgage decree, the first Defendant in

these proceedings purchasing the property from the second Defendant by private treaty under a registered sale deed, dated 21st January 1959

pursuant to an agreement of sale, dated 28th December 1958.

Meanwhile the Plaintiff was taking independent proceedings for recovery of the amount decreed in Original Suit No. 180 of 1952. Two

execution petitions, Execution Petition No. 35 of 1956 and Execution Petition No. 464 of 1956 for attachment and sale of the movable properties

of the judgment-debtor were filed and they were respectively dismissed on 5th June 1956 and 18th December 1956. On 26th January 1959, the

Plaintiff filed Execution Petition No. 36 of 1959 for execution of the decree in Original Suit No. 180 of 1952 for the recovery of a sum of Rs.

1,432 and odd by attachment and sale of the suit property which had been originally othied to the Plaintiff and the subject of the mortgage suit,

Original Suit No. 29 of 1957 above referred to. The first Defendant as a purchaser of the property for a sum of Rs. 14,000 under exhibit B-3,

dated 21st January 1959 came forward with the claim petition, Execution Application No. 237 of 1959 putting forward his purchase outside the

Court under exhibit B-3 on 21st February 1959 and his being ever since in possession in his own right. As the attachment in Execution Petition

No. 36 of 1959 was effected only on 3rd January 1959, the claim was allowed on 6th June 1959. On the claim suit out of which the present

second appeal arises the trial Court held that there was no attachment subsisting on the date of the sale in favour of the claimant and the sale deed

was not executed in fraud of creditors. The learned District Munsif took the view that even though there was an attachment before judgment when

the Plaintiff sought a fresh attachment, it should be deemed that the attachment before judgment had been put an end to, and as such, the sale in

favour of the claimant the first Defendant in the suit should be declared as valid. It is noticed in the judgment of the trial Court that the first

Defendant pleaded an estoppel but at the time of the argument, he conceded that no question of estoppel arose. In appeal, the only question that

was considered was whether the attachment before judgment obtained by the Plaintiff was subsisting when the first Defendant took the sale of the

suit property. The learned District Judge over-ruled the plea of waiver of the earlier attachment as inapplicable on the facts of the case and holding

that the attachment was subsisting, decreed the suit as prayed for.

K.S. Champakesa Ayyangar, learned Counsel appearing for the Appellant (the claimant) did not seriously contend that by reason of the

dismissal of the two intervening execution applications for attachment and sale of the movable properties of the judgment-debtor the attachment

before judgment had come to an end or was it seriously argued that there was a waiver of that attachment by reason of the re-attachment. The

dismissal of the two execution applications against the movable properties of the judgment-debtor cannot have the effect under Order XXI, Rule

57 of the CPC of discharging the attachment of the immovable property effected before the attachment of the movable properties. There has been

no prior execution application in respect of the immovable property. Under the decision in Meyyappa Chettiar v. Chidambaram Chettiar ILR

(1923) Mad. 483. (F.B.) the attachment before judgment becomes an attachment in execution only when it is definitely sought to be made

available for execution. In this case the property has been sought to be proceeded against only in the execution proceedings out of which the claim

has arisen. The ratio decidendi of the decision of Natesa Nilangiriyar Vs. V. Raju Mudaliar, would apply to cases of this kind. There, no doubt, the

properties were in different districts and an attachment before judgment had been effected of all the properties. The question for consideration was

whether the decree- holder''s default in the conduct of an execution application for the sale of one property situate within the jurisdiction of one

Court entailed the consequences of the termination of the attachment of the property situated within the jurisdiction of another Court simply for the

reason that all the properties had been attached before judgment by a single order. Abdur Rahman J., observes (at page 325):

Order 38, Rule 11 renders a re-attachment of the property attached before judgment unnecessary and according to the Full Bench decision in 47

Mad. 483, this rule may be read jointly with Order 21, Rule 57, with the result that if the application for execution in regard to the property

attached before judgment happens to be dismissed on account of the decree-holder''s default, the attachment in regard to that property would

cease to exist. But there appears to be no warrant for the proposition that a decree holder''s default in the conduct of an execution application for

the sale of one property situate within the jurisdiction of one Court may entail the consequence of the termination of the attachment of a property

situate within the jurisdiction of another Court simply because both the properties situated within the jurisdiction of two Courts happened to be

attached by one order passed before judgment. There seems to be no reason to extend the scope of the sanction provided in the last sentence of

Rule 57 which was apparently enacted to deal with those properties alone in regard to which an application was made and which were attached in

consequence of that application.

In the present case the earlier execution application related to the movable properties of the judgment-debtor and had no relation with the

attachment before judgment obtained of the immovable property. Orders passed, therefore, on those applications can have no effect on the

attachment before judgment obtained in respect of the immovable property. The following observation of Abdur Rahman J., in the same case

would apply with greater force to the present facts (at page 326).

I see no reason to hold that by making an application for sale of one property within the jurisdiction of one Court, a decree-holder may be deemed

to have manifested his intention in regard to the property situated in other districts as well so that those properties might be considered to have

been also attached in the execution of his decree.

Apart from the plea of waiver and abandonment, which I shall be adverting to presently, it has not been shown how the attachment before

judgment obtained in this case had been determined. The contention strenuously pressed in the Courts below that the subsequent attachment of the

same properties shows that the earlier attachment before judgment had been dropped JS without substance and has been rightly discountenanced

by the learned District Judge. The following observations of Ramesam J., in Meyyappa Chettiar v. Chidambaram Chettiar ILR (1923) Mad. 483,

513 (FB) are with respect apposite on this part of the arguments:

Just as the effect of two attachments of the same property in execution of the same decree (the second one being effected in forgetfulness of the

first) is merely that the property is under attachment, the first attachment merging in the second, similarly the effect of an attachment before

judgment followed by a redundant re-attachment after judgment is merely that the property is under attachment. In such cases it is meaningless to

say that the property is under two attachments. It is still more meaningless to say that one attachment is dropped but another subsists.

To the same effect Venkataramana Rao J., has observed in the case reported in A.M.K.M.K. Karuppan Chettiar and Another Vs. Rajangam

represented by mother and guardian Thayyu Ammal and Others, .

It is contended that the procuring of afresh attachment in Execution Petition No. 320 of 1930 would indicate clearly that the prior attachment was

treated by the Plaintiffs as not legally subsisting. If owing to a mistake or ignorance of legal rights, the Plaintiffs obtained a fresh attachment it would

not terminate the attachment which was already subsisting. The fresh attachment is a superfluity.

The learned Counsel raised a point that as there has been a sale though unsuccessful in pursuance of the mortgage decree at the instance of the

same decree-holder, it must be held that the attachment had ceased or at least must be deemed to have been abandoned. The point in this form

has not been raised in the Courts below and the learned Counsel appearing for the Respondent naturally objects to the point being raised here in

second appeal. It is contended for the Appellant that by reason of the Court sale, the prior attachment fell to the ground and reliance is placed on

Kashy Nath Roy Chowdhry v. Surbanand Shaha ILR (1885) Cal. 317 and Chamiappa Tharagan v. Rama Ayyar ILR (1920) Mad. 232. Apart

from that fact that there has been no confirmation even of the sale, I do not think it will be fair to the Respondent to permit the Appellant to raise

this plea in second appeal.

One other point strenuously urged before me is that the Plaintiff being himself a mortgagee cannot bring to sale the mortgaged property in

execution of money decree arising out of the transaction of mortgage. It must be pointed out that this point also was not taken in the Courts below.

The contention raised is that the decree in Original Suit No. 180 of 1952 was for arrears of rent arising on a lease back of the mortgaged property

in favour of the mortgagor by the mortgagee who had been placed in possession of the mortgaged property, that the lease was part of the

mortgage transaction and that therefore the claim for rent was one that arose under the mortgage within the meaning of Order XXXTV, Rule 14,

Code of Civil Procedure.

The decision of a division Bench reported in Narasimhulu v. Ramanatha ILR (1961) Mad. 1209 is relied upon in this connection and my attention

is drawn to the following observations therein (at page 1211);

It must be taken to be well established that a decree for rent arising out of a lease back in favour of the mortgagor by the mortgagee in possession

as part of the mortgage transaction is a claim arising under the mortgage.

In that case objection was taken by the judgment-debtor in the execution proceedings themselves. The mortgage was subsisting, and it was held

that the mortgagee was not entitled to bring the mortgaged property to sale in execution of the decree in question there. The Appellant contends

that as a person claiming under the mortgagor he is entitled to put forward in these proceedings an objection to the sale of the motgaged property

in execution of the money decree. But it is not conceded in this case that the money claim and the mortgage are part of one and the same

transaction to disentitle the Plaintiff to relief against the mortgaged property. The point not having been raised in the Courts below, it cannot be

allowed to be raised in the second appeal for the first time as it would be necessary to examine facts and find out whether the money claim and

mortgage are part and parcel of the same transaction.

It must also be noticed that the provision (Order XXXIV, Rule 14, Code of Civil Procedure) was enacted by the Legislature for the benefit of

the mortgagor that the mortgagee might not purchase the equity of redemption in enforcement of a money decree which he may obtain against a

mortgagor arising out of the claim under the mortgage and defeat redemption by the mortgagor in the, usual course. The provision being intended

for the benefit of the mortgagor it would be open to the mortgagor to waive the benefit of the provision. In this case, in the mortgage suit itself,

reference has been made to the decree which the mortgagee had obtained for rent till 16th August 1952. The mortgage decree provides for

interest only after 16th August 1952 taking note of the money decree. No objection has been taken by the mortgagor in these proceedings to the

money decree and attachment which the mortgagee had obtained. Again Order XXXIV, Rule 14 prohibits only the sale of the mortgaged property

and not an attachment of the property. In Jivarathnam Mudaliar v. Srinivasa Mudaliar ILR (1907) Mad. 33 referring to Section 99 of the Transfer

of Property Act which corresponds to the present provision of Order XXXIV, Rule 14, it has been observed that there is nothing in Section 99 of

the Transfer of Property Act to prohibit the attachment of the mortgaged property. Apart from the fact that the point is now taken for the first time

in second appeal it must be said that even on the merits, the contention is without substance. There being no prohibition against the attachment, it

must be held that the attachment before judgment of the property in question was valid and proper and had been subsisting. Again what is

prohibited is the sale of the motgaged property. That necessarily involves the subsistence of the mortgage and the relationship of the mortgagor and

the mortgagee between the judgment-debtor and the money decree-holder. Here admittedly the mortgage decree has been satisfied in full and the

property could no more be said to be mortgaged property. In Arumugam Pillai by mother and guardian Gomathi Ammal Vs. N.P.R.M.V.R.M.

Alagappa Chettiar, Spencer J. observes (at page 162):

I am of opinion that where the mortgage right is extinguished by limitation or by compromise or is in some way ineffective through some legal

defect, Order XXXIV, Rule 14 of the CPC will not bar a sale in execution of a simple money decree.

In Mullah''s CPC (twelfth edition) at page 1126, it is observed:

Further, it must be a subsisting mortgage, and not one which by reason of the efflux of time or any other like circumstance has ceased to be

enforceable at law.

The object of the rule as already stated being to prevent the mortgagee from suing the mortgagor on a mortgage debt and in execution selling the

bare equity of redemption thereby depriving the mortgagor of the right of redemption that would be given to him in a regular mortgage suit under

the decree for sale, when there is no right of redemption and the mortgage itself has been satisfied, the rule can have no application.

Another point was raised on behalf of the Appellant that the property attached is not the same. This point was also not raised in the Courts

below and it has not been made out how the property attached before judgment was different from the property that is brought to sale.

In the result, the second appeal has to fail and is dismissed with costs.

No leave.