Radhey Kishan Lal v. Rameshwar Prasad Opposite Party.

1. The opposite party obtained a money-decree against one Mt. Brijpeari Kuer and in execution thereof proceeded to attach certain houses in Jehanabad. The petitioner claims to be a mortgagee of the houses under two deeds, one dated the 9th August 1921, and the other dated the 5th March 1923. The first mortgage is alleged to he a usufructuary mortgage and the second mortgage a simple mortgage. The petitioner claims to be in possession of the houses under the usufructuary mortgage. He filed an application before the learned Munsif under O. 21, R. 58 of the CPC for releasing the attachment and he also made a prayer in that application for an order that the attachment may continue subject to his mortgage under the provisions of R. 62.

2. The learned Munsif has held that the application is not maintainable and has dismissed the same.

3. He has at the same time observed that what will be sold is the right, title and interest of the judgment-debtor in the disputed houses, and if the applicant is dispossessed after the sale, then it would be open to him to come in under O. 21, R. 100 of the CPC. The petitioner has come up in revision against this order of the Munsif and it is contended that he is entitled to apply under O. 21, R. 58, as he is in possession of the property. The learned Munsif gives no reason whatsoever for holding that the application is not maintainable. I find nothing in the provisions of R. 58 of O. 21, which would prevent a mortgagee in possession from making an application under this rule. The learned counsel for the opposite party relies upon a decision of this Court in Biswanath Patra v. Lingaraj Patra*(1). It is, no doubt, true that in that case it was observed that a mortgagee in possession was not entitled to come to Court and argue that the property was not liable to attachment. But what I understand that judgment to mean was that a mortgagee in possession could not object to the attachment of the mortgagor's interest in the property. In Maharaj Bahadur Singh v. Norsharan Bibi(2) it was open to a mortgagee in possession to apply under O. 21, R. 58 of the CPC for removal of an attachment of a mortgaged property under execution of a money-decree, but that if it can be inferred that the intention of the decree-holder was not to attach the property itself but the equity of redemption, the attachment may be allowed to continue upon the equity of redemption. Their Lordships relied on the authority of two Bombay cases and one Calcutta case in support of their decision, and I am inclined to agree with the view taken in that case. In the present case, however, the learned Munsif has pointed out that what will be sold is the right, title and interest of the judgment-debtor. It is, therefore, clear that what was intended to be attached is the right, title and interest of the judgment-debtor, in other words, the right of the judgment-debtor to redeem the petitioner if the petitioner has got a valid mortgage.

4. The attachment, therefore, in the present case must be considered to be confined to the mortgagor's interest in the attached property; and the interest of the petitioner, if he has any, in the mortgaged property will not be affected by the attachment. Both parties are willing to allow the attachment to continue on a declaration that the attachment is an attachment of the mortgagor's interest in the property. The attachment will, therefore, subsist with this declaration. I make no order as to costs.

5. Order accordingly.