Sunder Prasad Singh vs Deodhari Singh and Others

Courtney-Terrell, C.J.—This case cornea before the Full Bench on a reference by-two learned Judges of this Court to whom as a Bench the case had been referred when the matter first came before a single Judge of this Court sitting in Civil revision. The facts which have given rise to the discussion which has come before us for solution are simple.

In 1932, the petitioner brought a mortgage suit against defendants 2 to 7. Before a decree was granted, that is to say on 3rd April 1933, the defendants mortgaged certain of their property to the opposite party 1. On 19th June 1933, the petitioner got his money decree and proceeded to execute it by the sale of the property which had been mortgaged. The opposite party 1 under Order 21, Rule 58, Civil P.C., instituted a claim ease. That claim case was on 27th April dismissed for default; but it is obvious that the claim case even if it had been heard on the merits must necessarily have been dismissed because in the circumstances Order 21, Rule 58 had no application whatever to the facts. Under a money decree the judgment creditor could merely sell the right, title and interest of the judgment-debtor in the property to be sold, that is to say all he could do would be to put up for sale the equity of redemption. The rights of the mortgagee, if any, could merely be asserted by virtue of his mortgagee rights and the threatened sale by the judgment creditor could not affect his rights even if he were the mortgagee in possession, because if Order 21, Rule 54 be examined it will be seen that the effect of the attachment was merely to prohibit the judgment-debtor from transferring or charging the property in any way and the only thing which could be transferred or charged was the equity of redemption in the mortgage. Accordingly Order 21, Rule 58 being inapplicable to the circumstances of the case, Order 21, Rule 63 has also no application and could not be used by the mortgagee. Order 21, Rule 63 enables a person whose claim has been dismissed under Order 21, Rule 58 to sue in order that he may have his rights determined, that is to say if the claimant and the judgment-creditor are in conflict as to the rights in a certain property and if a decision has been given on the merits in the claim case, should the party who loses the claim case desire to push his claim further, he must have resort to a suit for that purpose. In this case the mortgagee was merely claiming in respect of his mortgage rights which were not threatened and the judgment-creditor could merely claim in respect of the right to put up for sale the equity of redemption, that is to say they were not fighting about the same property at all and there could in the circumstances be no decision which could be made the subject of litigation under Order 21, Rule 63.

The next stage in the proceedings was that on 1st October 1934, the property, that is to say, the equity of redemption, being the right, title and interest of the judgment-debtor, was put up for sale and purchased by the decree-holder himself and on 3rd March 1935, the decree-holder obtained delivery of possession. The mortgagee then had resort to Order 21, Rule 100, that is to say he said, "I, being dispossessed by the decree-holder, am entitled to have the merits of my claim heard under that rule." The objection was taken by the decree-holder purchaser that whereas the mortgagee had already taken proceedings under Order 21, Rule 58 and whereas the claim by the mortgagee had been dismissed by default, the mortgagee not having had recourse to Order 21, Rule 63, that is to say not having brought a suit as contemplated by that rule, he could not now be heard to press his claim for possession under Order 21, Rule 100. To put it at its best this is but an exceedingly technical plea and moreover it is wrong on the merits. Order 21, Rule 58 had no application; Order 21, Rule 63 had therefore no application whatever; and in that case the only remedy properly left to the mortgagee was to press his claim under Order 21, Rule 100. This has always been the view of this Court and it was so decided in ILR 1 Pat 159 The learned Judges who referred this case had some doubt as to whether the reasoning of the decision in that case was correct; but, in my view it was correct and the Pull Bench decision of the Madras High Court in 45 Mad 8272 indirectly supports this view. It is sufficient to say that the abortive proceedings under Order 21, Rule 58 did not bar the subsequent proceedings by the mortgagee under Order 21, Rule 63 and that the case I have referred to in ILR 1 Pat 1591 was correctly decided. The judgment-creditor must therefore pay the costs throughout.

Fazl Ali, J.

I agree.

James, J.

I agree.