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Nathubhai Motilal Vs. Bai Ujjam - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 505 of 1907
Judge
Reported in(1908)10BOMLR274
AppellantNathubhai Motilal
RespondentBai Ujjam
Excerpt:
transfer of property act (iv of 1882), sections 99, 67, 100- mortgagee-attachment by mortgagee-application -suit.;section 99 of the transfer of property act contemplates attachment by judgment-creditor (even if he be a mortgagee): and he is entitled to do so by an application in execution of the decree. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be..........appeal from an order passed by the district court of broach on the 26th march 1907.2. the acting district judge described the appeal before him as being from the lower court's order directing execution to proceed. the order he intended to describe was one of the 22nd october 1906, and that was an order for attachment of property.3. the learned judge reversed this order for attachment and rejected this darkhast. the ground of his decision wasthat he thought sections 99 and100 and section 67 of the transfer.of property act made it necessary that a suit should be brought under section 67.it may be a question as to whether or not one of the properties can be regarded as property in relation to which the applicant is a mortgagee within the meaning of section 99 of the transfer of property.....
Judgment:

Lawrence Jenkins, C.J.

1. This is an appeal from an order passed by the District Court of Broach on the 26th March 1907.

2. The acting District Judge described the appeal before him as being from the lower Court's order directing execution to proceed. The order he intended to describe was one of the 22nd October 1906, and that was an order for attachment of property.

3. The learned Judge reversed this order for attachment and rejected this darkhast. The ground of his decision wasthat he thought Sections 99 and100 and Section 67 of the Transfer.of Property Act made it necessary that a suit should be brought under Section 67.

It may be a question as to whether or not one of the properties can be regarded as property in relation to which the applicant is a mortgagee within the meaning of Section 99 of the Transfer of Property Act. But with that we have no concern at this stage. Even if he be a mortgagee, he still is entitled to attach the property. Section 99 contemplates an attachment by him: for it provides that where a mortgagee in execution of a decree for the satisfaction of any claim whether arising under a mprtgage or not attaches the mortgage property, he shall not be entitled to bring such property to sale otherwise than by instituting a suit under Section 67. Therefore the learned Judge of the District Court was wrong in reversing the order for attachment and rejecting the darkhast.

4. When any application is made for bringing the property to sale, then will be the time to consider whether or not Section 99 has any application.

5. The result is that we reverse the decree of the lower appellate Court and restore that of the Subordinate Judge,

6. The respondent must pay the costs throughout.


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