Sinna Pillai and Others vs Karuppatti Alla

Curgenven, J.—The appellant is the widow of one Musaku Rowthen, against whom the respondent obtained a money decree in 1919. The

judgment-debtor died in 1920, and the appellant was brought on as his legal repesentative. In 1922 the decree-holder attached an othi or

usufructuary mortgage interest which had been held by the judgment-debtor upon a property the equity of redemption of which had been sold by

the mortgagor to the appellant in 1906; so that, at the time of the attachment, both the mortgage interest (if it still subsisted) and the equity of

redemption vested in the appellant. The attachment, it is contended on the authority of Ramaswami Mooppun v. Srinivasa Iyengar [1916]39

Mad.389, should have been made, as of a debt, Under Order 21, Rule 46, Civil P.C., but in point of fact it was made, as of immovable property

Under Rule 54 of that order. This error of procedure does not however, I think, affect the position. The othi interest was brought to sale and was

purchased by the decree-holder. He then filed an application for delivery of possession to him of the mortgaged property. The District Munsif

framed two issues, the first inquiring whether the othi debt had been discharged before attachment, and the second whether the purchaser was not

entitled to delivery. He found that the debt had been discharged and he therefore refused to give delivery. The Subordinate Judge differed on the

former point, and allowed the application. It is from this order that the appeal is preferred.

The sale certificate shows that what was sold was the "" usufructuary mortgage debt."" The first point taken for the appellant is that the executing

Court cannot inquire into the truth of the debt, or its subsistence at the time of the attachment, but sells it for what it may be worth and leaves the

purchaser to pursue his remedy else where. This, I think, is a correct statement of the position when the purchaser of the debt is a third party. I had

occasion to decide the point recently in the case of a simple debt in C.R.P. No. 207 of 1931, and hold, following Ma Saw Yin v. Hooper AIR

1926 Rang.175 and Maharaja of Benares v. Patraj Kunwar [1906] 27 All.262, that it is not for the executing Court to determine whether the debt

is actually due or not. Lakshmana Rao, J., has taken a similar view in C.M.S.A. No. 89 of 1927. I do not think that the position is altered by the

debt being secured by a mortgage, usufructuary or otherwise, but it is urged that it does not make a difference that the purchaser is the decree-

holder himself. It is no doubt true that the executing Court has power under Sections 47 and 50 of the Code to ascertain by inquiry the extent of

the property of a deceased judgment-debtor which has come into the hands of his legal representative; and if further authority were needed for this

position it is to be found in such cases as Arundadhi v. Natesha [1882] 5 Mad 391, Kurtyali v. Mayan [1884] 7 Mad.255, Vengappayan v. K.

Parvati [1903] 20 Mad.501, and Punchanun v. Babia Bibi [1890]17Cal.711 (F.B.) But to apply this principle to the circumstances of the present

case it is needful to inquire what useful purpose would be served by such an inquiry, and this involves an answer to the second question: whether

the executing Court can, upon the strength of his sale certificate, put the purchaser in possession of the property.

I do not think that the decree-holder, qua purchaser, occupies any more favourable position than a third party auction purchaser. We have to

look in each case to the nature of the property purchased, and the facilities which the execution provisions of the Code afford him for realizing the

proceeds of that purchase. The purchase was of a usufructuary mortgage debt, and such a debt it has been held,--see the decision of Phillips, J., in

Venkatalakshmi Ammal v. Mathurbutham Iyer [1929] M.W.N. 138--is moveable property and is at tachable as such Under Rule 46, Order 21.

Upon sale the method of delivery is, as provided for in Rule 79(3), by a prohibitory order of the Court resembling that made on attachment. It is

only upon the sale of immovable property that delivery of possession of that property can be ordered, Under Rule 95. I have been shown no

authority for the view that the purchaser of a usufructuary mortgage right buys such an interest in immovable property as wood entitle the executing

Court to proceed under this rule. Although, as has been said, the attachment was actually made Under Rule 54, it has not been suggested that that

circumstance can invest the sale with a character and consequences which would be inapplicable to the kind of property which formed its subject-

matter. I must hold accordingly that the purchaser of a usufructuary mortgage debt, whether or not he be also the decree-holder, cannot get

anything; more from the executing Court than his sale certificate. It that be so, it appears to me to follow that no occasion can arise for that Court

to adjudicate upon the question of the subsistence of the debt whatever power it may have in the case of a decree-holder auction-purchaser to do

so. It should leave the whole question of proof and enforcement of the debt to other proceedings.

The result must be therefore that the appeal is allowed, the order of the lower appellate Court set aside and the order of the District Mnnsif

restored with costs throughout.