Sharfuddin, J.:— These are two appeals against an order of the Subordinate Judge of Cuttack passed on 14th March, 1914, on an application for execution of a decree passed by the High Court of Calcutta on appeal. It is necessary to reproduce in this judgment the ordering portion of the decree passed by the Calcutta High Court:
“It is ordered and decreed that the plaintiff do get from the defendant a maintenance allowance of Rs. 150 a month from 6th November, 3905. She do also get Rs. 7,950 from defendant on account of arrears of maintenance for the period beginning from 26th November, 1908 to 26th April, 1910. It is further ordered that the plaintiff do get costs from the plaintiff (this is a misprint for defendant) and it is further ordered that the allowance decreed will be a charge on the property mentioned in the plaint.”
2. The decree-holder applied for execution of the decree by attachment and sale of the property described as Killa Aul, which is one of the properties mentioned in the schedule attached to the plaint, whereupon the present appellant filed an objection under Section 47 of the CPC on 25th September, 1913, on the ground that the order of attachment was illegal inasmuch as the maintenance decreed by the High Court was made a charge on the properties mentioned in the plaint, and that the decree-holder was not entitled to bring the properties charged to sale otherwise than by a separate suit for sale in enforcement of the charge under Section 67 of the Transfer of Property Act. The Subordinate Judge, on 14th March, 1914, disallowed the objection and ordered that the execution should proceed. It is against this order that these present appeals have been preferred. On behalf of the appellant it was contended that under the decree of the High Court a charge having been created, the property could not be sold without first proceeding under Section 67 of the Transfer of Property Act, 1882. That section provides:
“In the absence of a contract to the contrary, the mortgagee has at any time after the mortgage money has become payable to him, and before a decree has been made for the redemption if the mortgaged property, … a right to obtain from the Court an order that the mortgagor shall be absolutely debarred of his right to redeem the property.
3. A suit of this nature is known as a suit for foreclosure. The appellant further relied on Section 99 of the Transfer of Property Act. S. 99 provided that:
“Where a mortgagee in execution of a decree for the satisfaction of any claim, whether arising under the mortgage or not, attaches the mortgaged property, he shall not be entitled to bring such property to sale otherwise than by instituting a suit under Section 67 of the Transfer of Property Act.”
4. Rule 14, O. 34 provides:
“Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not he entitled to bring the mortgaged property to sale … in enforcement of the mortgage.”
5. It is clear, therefore, that an alteration has been made in the present Code of Civil Procedure. In the case of Tarak Nath Adhikari v. Bhubaneshwar Mitra(1) I have pointed out the alteration and its effect made by R. 14, O. 34. In the present case, however, I propose to point out that this rule corresponds to Section 99 of the Transfer of Property Act, except that the words “a claim arising under the mortgage” have been substituted for the words “any claim whether arising under the mortgage or not.” The effect of this alteration is to confine the operation of the present rule to cases where a mortgagee has obtained a personal decree against a mortgagor on a mortgage debt. In such a case R. 14, operates and the mortgagee is not to be entitled to bring the mortgaged property to sale in execution of the personal decree. He can have the properties sold only by instituting a regular suit for sale and obtaining a decree for sale under Rr. 4 and 5 of this order. It is clear that where a mortgagee brings such a suit for sale and obtains a decree, what will be sold is the mortgaged property free from the mortgage, while in the other case where the suit is not for sale but on the mortgage debt only what will be sold is the mortgaged property subject to the mortgage, that is, it would be only the mortgagor's equity of redemption that would be sold. The object of the present rule is to prevent mortgagees from suing mortgagors on a mortgage debt as such and in execution selling the right of equity of redemption, thereby depriving the mortgagor of the right of redemption that he is bound to get by the decree for sale. There is no doubt that in the High Court's decree the word ‘charge’ has been used, but the question is whether the word ‘charge’ used therein is within the meaning of Section 100 of the Transfer of Property Act. That section provides:
“Where immovable property of one person is by act of parties or operation of law-made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained as to a mortgagor shall, so far as may be, apply to the owner of such property, and the provisions of Ss. 81 and 82,……shall, so far as may be, apply, to the person having such charge,”
6. The original suit which culminated in the High Court decree was a suit for maintenance only and not a mortgage suit, so the present claim of the decree-holder cannot be said to have arisen under any mortgage. I understand the word ‘charge’ in the High Court decree is intended for the purpose that the decree-holder may have a lien on the properties, if any of them happens to be alienated to purchasers with notice and the charge, therefore, is really not on the properties, but on the profits thereof. Section 39 of the Transfer of Property Act, provides that:
“Where a third person has a right to receive maintenance or a provision for advancement or marriage, from the profits of immovable property, and such property is transferred with the intention of defeating such right, the right may be enforced against the translate, if he has notice of such Intention or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands.”
7. A Hindu widow and a Hindu daughter have a right of maintenance from the estate of the deceased husband or father, as the case may be, and any of them in case of transfer, can enforce that right of maintenance against the transferee notwithstanding the transfer. Various reported cases of the different High Court a of the country have been referred to by the parties, some of which are cases before S. 99 was repealed. I do dot see it necessary to discuss those cases. The words of the law are plain, and we have to administer the law and whether that law is good or had is not for us to decide, it is for the legislative body to do so. For the above reasons, I am of opinion that the objector's objection against execution was rightly disallowed by the Subordinate Judge. These two appeals are dismissed with costs.
8. Chapman, J.:— I agree. Reading Rr. 14 and 15, O. 34 of the CPC with Section 100 of the Transfer of Property Act, the law on the subject may be stated in the following terms. Where immovable property has been made security for the payment of money and the beneficiary has obtained a decree for the payment of the money so secured, he shall not be entitled to bring the property to sale otherwise than by instituting a suit for sale in enforcement of the security. The object of the law is to secure to the debtor the rights which he has in the case of a decree for sale and which he does not have in an ordinary decree for money. For the purposes of the present case there is one matter which requires elucidation. The expression in R. 14, is “decree for the payment of money in satisfaction of a claim arising under the mortgage” (or charge). These words make it clear that the decree referred to must be a decree subsequent to the creation of the security. In other words, the immovable property must have been made security for the payment of the money before the money decree was obtained, otherwise the provisions do not apply and the appellant has no case. I have, therefore, to decide in this case whether the immovable property was made security for the payment of the money before the money decree was obtained. It has been contended that apart from and before the decrees the widow in one case and the daughter is the other were persons for whom the payment of money had been secured in the manner required, that is to say, that immovable property had in each case been made security for the payment of the maintenance before the decrees were obtained. But prior to the decree neither the widow nor the daughter had any right other than the right to receive maintenance from the profits of the immovable property left by Pitamber Deo so long as it remained in the family or was transferred gratuitously.
9. If the property had been transferred elsewhere for value, neither widow nor daughter would have had any remedy against the transferee unless she could have proved that he had notice that the property was being transferred to him with the intention of defeating the right to maintenance. It is only by a somewhat loose use of the word security that, it can be said that the immovable property left by Pitamber Dao was made security for the payment of maintenance to the widow or the daughter before the decrees were obtained. It is clear, however, that the word security was not used in Section 100 of the Transfer of Property Act, in this loose sense. Obviously in order to come within the terms of the section the security must have been of such a kind as will enable a suit of the nature of a suit for sale to be brought to enforce it.
10. It cannot be said that until she has obtained a decree creating a charge a widow can realise her maintenance by a suit of the nature of a suit for sale. Much less can a daughter do so. Prior to the decree it was not a case of immovable property made security for the payment of money within the meaning of the section, but for the provision to apply it is necessary that the security should have been created before the decree. The learned Subordinate Judge rightly overruled the objection.
V.S/R.K
11. Appeals dismissed.
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