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Gopaldas Hiralal Marwadi Vs. Mahadu Dagdu Patil - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 135 of 1940
Judge
Reported inAIR1943Bom24; (1942)44BOMLR855
AppellantGopaldas Hiralal Marwadi
RespondentMahadu Dagdu Patil
DispositionAppeal dismissed
Excerpt:
.....1879), section 15 b--decree in mortgage suit under section 15 b.... whether such decree terminates suit-application made after decree for attachment before judgment-maintainability of such application--interim order for attachment withdrawn by court after hearing parties--order withdrawing attachment whether appealable.;a decree made in a mortgage suit under section 15b of the dekkhan agriculturists' relief act, 1879, terminates the suit; and an application made thereafter for attachment before judgment is not maintainable as it cannot be regarded as an application at any stage of the suit within the meaning of that expression in order xxxviii, rule 5, of the civil procedure code, 1908.;the cases of kashinath v. rama (1916) 18 bom. l.r. 475, sakhya v. suklal (1923) 25 bom. l.r. 1214,..........before judgment. the learned judge rejected it as not maintainable on the ground that the mortgage-decree had already been passed and the suit having been therefore terminated, no application for attachment before judgment could be filed at that stage. he was also of the opinion that the application was premature as it cannot be filed unless it was found that there was a deficit after the sale of the mortgaged property. it was contended before him that the application was maintainable in any case under the inherent jurisdiction of the court under section 151 of the civil procedure code, but that contention was rejected on the ground that it did not follow that the court had power to grant such attachment after the decree simply because there was no express provision in the code.....
Judgment:

Divatia, J.

1. This is an appeal by the plaintiff against an order rejecting his application for attachment of certain property belonging to his judgment-debtor. The defendant, who is an agriculturist, had mortgaged some of his property to the plaintiff and a consent decree was taken by the parties on November 22, 1938. The decree directed that the decretal amount was to be paid by installments of Rs. 600 per year and the first installment was to be paid on January 15, 1940; on failure to pay any installment the plaintiff was to apply to the Court under Section 15B of the Dekkhan Agriculturists' Relief Act to realise the installment and on failure to pay any two installments the plaintiff was to realise the whole amount by sale of the mortgaged property ; if there was any deficit, it was to be realised from defendants Nos. 1, 3 and 4 and from the joint family property of defendant No. 2. After the decree was taken the plaintiff made the present application on June 30, 1939, by which he sought to attach certain property of the judgment-debtor other than the mortgaged property on the ground that there was likelihood of a deficit occurring after the sale of the mortgaged property, and as the defendant was trying to do away with his other property, it was necessary to protect the plaintiff's interest by attachment of that unmortgaged property of the judgment-debtor. The application appears to have been made under Order XXXVIII, Rule 5, which applies to attachment before judgment. The learned Judge rejected it as not maintainable on the ground that the mortgage-decree had already been passed and the suit having been therefore terminated, no application for attachment before judgment could be filed at that stage. He was also of the opinion that the application was premature as it cannot be filed unless it was found that there was a deficit after the sale of the mortgaged property. It was contended before him that the application was maintainable in any case under the inherent jurisdiction of the Court under Section 151 of the Civil Procedure Code, but that contention was rejected on the ground that it did not follow that the Court had power to grant such attachment after the decree simply because there was no express provision in the Code to that effect.

2. The plaintiff has filed this appeal against that order. On behalf of the respondent Mr. Gajendragadkar has taken a preliminary objection that the appeal does not lie because it is not covered by Order XLIII, Rule 1(q), of the Civil Procedure Code, which provides for an appeal against an order under Rule 2, 3 or 6 of Order XXXVIII. It is contended that the order rejecting the application for attachment before judgment does not fall under Rule 6, because that rule speaks of an order of the Court directing certain property to be attached where the defendant failed to show cause on an application by the plaintiff, and that the rule does not apply to a case where the plaintiff's application for attachment before judgment has been dismissed. It is true that Sub-rule (1) of Rule 6 speaks of an order of the Court directing attachment of the property. Sub-rule (2), however, says that where the defendant shows cause against an application by the plaintiff or furnishes the required security and the property specified has been attached, the Court shall order the attachment to be withdrawn, or make such order as it thinks fit. This Sub-rule would apply where on the application of the plaintiff an order for interim or conditional attachment has been made, and after hearing both sides the Court withdraws the attachment. The order of the Court, therefore, withdrawing the attachment after the defendant had shown cause would fall under Sub-rule (2) and as such be appealable. That is the effect also of the authorities in Chokhey Lal v. Sri Kishen (1931) 30 A.L.J. 228 and Kedarnath Himatsinghka v. Tejpal Marwari (1934) I.L.R. 14 Pat. 1. It is held in the latter case that there is no appeal where there was no conditional or interim order of attachment, but an appeal would lie where there is such an interim order. In the present case it is clear that there was an order of interim attachment, the defendant showed cause against it, and the order of the learned Judge rejecting the plaintiff's application amounted, therefore, to an order withdrawing the attachment made at the instance of the plaintiff when the application was made. It is thus clear that the present order falls within Sub-rule (2) of Rule 6. The preliminary objection, therefore, fails.

3. On the merits it is contended by Mr. Desai on behalf of the appellant that the plaintiff's application was made when the suit was pending even though the consent decree was taken by the parties. The argument is that in a mortgage suit any application made even after the preliminary decree was passed would be an application in the suit and not in execution by virtue of the provisions of Order XXXIV, Rule 5, of the Civil Procedure Code, and it would, therefore, be open to the plaintiff to apply for attachment under Order XXXVIII, Rule 5, because under that rule it is open to a party to make an application for attachment at any stage of a suit. The argument goes further that even after the final decree is passed and liberty is reserved for applying for a personal decree under Order XXXIV, Rule 6, it would be open to the plaintiff to make such an application after the final decree and before the Court passes a personal decree, because that order is to be made by the Court which passed the original decree. This argument is no doubt supported by the decisions in Muhammad Shafiq Ahmad v. Ram Katori (1932) I.L.R. 55 All. 179, Shyam Lal v. Bahal Rai (1936) I.L.R. 58 All. 884 and Jogemaya Dassi v. Baidyanath Pramanick (1918) I.L.R. 46 Cal. 245 and it may be taken that it would be open to a plaintiff after the preliminary mortgage decree to apply for attachment before judgment in a proper case. Our Court has held that it is open to a party to apply for attachment before judgment of unmortgaged property before a preliminary decree is passed: see Shridhar, v. Lakshman (1930) 33 Bom. L.R. 514.

4. The question is whether in the present case it is open to the plaintiff to apply for an order of attachment before judgment after the decree was passed. Now, it is material to note that the decree is not an ordinary mortgage decree falling under Order XXXIV, Rule 5, but it is a decree which is governed by the provisions of Section 15B of the Dekkhan Agriculturists' Relief Act which in one material respect is different from an ordinary mortgage decree falling under Order XXXIV. The difference is that while after an ordinary preliminary mortgage decree it is necessary to apply for a final decree, and thereafter further necessary to apply for a personal decree if there is a deficit, in the case of a mortgage decree under Section 15B it is not necessary to apply for a final decree, and it has been held in a number of cases of our Court that such a decree is not required to be made final. Those decisions are Kashinath v. Rama (1916) 18 Bom. L.R. 475, Suklya v. Suklal : AIR1924Bom169 ., Hirachand Khemchand v. Aba Lala I.L.R. (1921) 46 Bom. 761 and Ramkrishna v. Ramchandra : (1930)32BOMLR1093 , Mr. Desai contends that there is a conflict between those decisions and a previous decision of this Court in Mancherji v. Thakordas I.L.R. (1906) 31 Bom. 120 but we do not see any such conflict. The point in that case was as to whether it was open to the Court to grant installments to an agriculturist in execution proceedings after the decree was passed against him, and it was held that it was so under Section 15B of the Dekkhan Agriculturists' Relief Act. The point as to whether a preliminary decree under that section was required to be made final or not did not arise for decision in that case. Similarly the full bench decision in Kashinath Rudrappa v. Ramaya : AIR1936Bom280 , F.B., which follows the decision in Mancherji v. Thakordas I.L.R. (1906) 31 Bom. 120, s.c. 8 Bom. L.R. 963, is also not against the series of decisions mentioned above. In our opinion, it is established that in the case of a mortgage decree under Section 15B it is not necessary to apply for a final decree. The present decree is a composite decree inasmuch as it provides for the payment of the mortgage amount and sale of the mortgaged property in default of payment of installments and it also directs personal remedy in case of deficit. It is clear, in our opinion, that after this decree, all further steps are to be taken in execution. If attachment of any property is prayed for after the decree, it would be governed by the provisions of Section 51 under which the executing Court can order attachment and sale or sale without attachment of any property. An application for attachment only without sale which can be made before judgment under Order XXXVIII cannot be made in execution. Moreover, it has been held in Bhagirathibai v. Hari Ravji Chiplunkar I.L.R. (1894) 19 Bom. 318 as well as in Balaji v. Datto : (1907)9BOMLR1026 , that the words 'in the course of any proceedings under a decree' in Section 15B mean the Court which carries out the decree, i.e. the executing Court. It would, therefore, follow that once the Court passes a decree in a mortgage suit governed by the Dekkhan Agriculturists' Relief Act, the suit is terminated, and any application made thereafter is an application after the termination of the suit and must be deemed to have been made in the stage of execution. It cannot be regarded as an application at any stage of the suit within the meaning of that expression in Order XXXVIII, Rule 5, of the Civil Procedure Code. We think, therefore, that the learned Judge was right in holding that the application was not maintainable.

5. The order of the lower Court is confirmed and the appeal is dismissed with costs.


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