1. The petitioners instituted a suit for recovery of money against one Kanhaiya Lal and applied for attachment before judgment of a shellac factory belonging to the defendant. After the attachment had been effected, the opposite party applied for relcase of the property from attachment on the ground that he had a usufructuary and a simple mortgage on the factory, each for Rs. 3000, both mortgages having been executed long before the institution of the plaintiffs' suit. The plaintiffs opposed the application of the opposite party for release of the property from attachment, alleging that the mortgages of the opposite party were sham transactions and not genuine transactions. The plaintiffs' contention succeeded with the result that the opposite party's application was dismissed and the property remained under attachment. The opposite party moved this Court. Their application was heard by Khaja Mohamad Noor, J.: see C.R No. 597 of 1937 on 21st January 1938. Khaja Mohammad Noor, J. held that the opposite party's application was premature and that the inquiry into his claim should be postponed “till the time comes for the sale of the mortgaged property.” His Lordship went on to observe, however, that “the attachment of the property to the extent of the interest of defendant whatever that may be will continue” and that when occasion arose for the sale of the interest of the defendant, whatever that might be, in the property attached, that would be subject to the decision of the claim of the petitioner. Thereafter, the plaintiffs obtained a decree against the defendant for Rs. 9216 and, in execution of that decree, put up for sale the factory in question and purchased it themselves. The opposite party's claim for release of the property from attachment was then revived and, on a consideration of the evidence adduced in support of it the Court below has released from attachment the factory and the moveable property in it. Against that order the plaintiffs have moved this Court.
2. It is contended on behalf of the plaintiffs that a usufructuary mortgagee is incompetent to maintain an objection to an attachment inasmuch as the law does not expressly provide for such objection being maintained and that it is not necessary for a usufructuary mortgagee to object to an attachment in execution of a money decree for his interest cannot be affected by such attachment. Beference is made to the decision in 1 Pat. 1591 the headnote of which is:
“A person in possession of property under an usufructuary mortgage is not entitled to object, under O. 21, R. 58 of the CPC, 1908, to the attachment of the property at the instance of a person who holds a decree against the mortgagor, and therefore when such an objection has been made and disallowed, R. 63 does not debar the objector from making an application under R. 100.”
3. The plaintiffs also rely on the Full Bench decision in 16 Pat. 542 in which the decision to which I have just referred was confirmed. That case was referred to the Full Bench for consideration of the decision in 1 Pat. 159 which was found to be in conflict with decision in other Courts. Two questions were referred to the Full Bench (1) when a mortgagee in possession has filed an objection under R. 58 of O. 21 of the CPC, against the attachment of immovable property and has allowed the objection to be dismissed for default, is his subsequent application under O. 21, R. 100, complaining of dispossession after the property has been sold and possession delivered to the auction purchaser barred by O. 21, r. 63? and (2) was 1 Pat. 159 rightly decided? The Full Bench answered the first question in the negative and the second question in the affirmative.
4. On behalf of the opposite party in this case, it is contended that neither the Full Bench nor the Division Bench of this Court has held that an objection under R. 58 is not maintainable by a mortgagee in possession; but all that has been decided by the two cases to which I have referred is, that, if an objection under R. 58 is made by a usufructuary mortgagee and is dismissed, the latter is nevertheless entitled to maintain an application under R. 100 when he is actually dispossessed, and such an application is not barred by R. 68. It may be conceded that is in effect the actual decision in these two cases. But, in order to reach that decision, both the Division Bench and the Full Bench held that it was not open to a usufructuary mortgagee to make an application under R. 58. It has been suggested that a different interpretation has been put upon the Full Bench decision by a Division Bench in 19 P.L.T 746.3 That however was not a case of a usufructuary mortgage but of a simple mortgage and in fact Wort, A.C.J observed that makes a considerable and substantial difference.
5. It was next contended that the decision of Khaja Mohamad Noor, J. in the earlier stage of the present litigation, to which I have already referred, operates as res judicata and debars the plaintiffs from taking the objection which is now taken, namely, that a usufructuary mortgagee is not competent to maintain an objection under R. 58. As I read the order of Khaja Mohamad Noor, J. it was merely that the question that was, then raised before him was premature and that it would be open to the parties to raise it when the proper stage of the litigation arose. I do not look upon the order of Khaja Mohamad Noor, J. as a final decision on the matter in dispute at all.
6. It was next contended that, as in the earlier stages of the present litigation the case of the plaintiffs was based on the assertion that the mortgages in favour of the opposite party were mere sham transactions and did not raise the question of the maintainability of the opposite party's objection, this Court, in the exercise of its revisional powers, should not now entertain this objection. It is true that the powers of this Court in revision are discretionary and that they will not be exercised save and except for the prevention of injustice; but that the matter is now before me and for the purpose of preventing a misunderstanding of the rights of the parties it is desirable that the matter should be clarified. It is clear, and indeed it is not contested, that the opposite party's rights, if any, under his mortgages cannot be affected by the attachment which the plaintiffs seek to reinstate; nor is it contested that the plaintiffs are entitled to attach the property of the judgment-debtor in execution of the decree which they have obtained against him. The respective rights of the parties can therefore be made clear by setting aside the order releasing the property from attachment and directing that the attachment be confined to the mortgagor's interest in the attached property.
7. I therefore set aside the order of the Court below and direct that the attachment do continue in respect of the mortgagor's interest. The petitioners will not have their costs in the present application as the matter was not raised directly at the earlier stage.
8. The moveable property of the defendant in the factory was purchased by the opposite party. The order of the Court below, so far as the moveable property is concerned, has not been challenged before me in this application and, so far as the moveable property is concerned therefore the order of the Court below is confirmed.
G.N/R.K
9. Order accordingly.
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