1. This is an appeal by defendant No. 2 against the order of attachment of his decree of annual installments of Rs. 3,000 against the Guptes.
2. In 1919, defendant No. 2-appellant Marathe mortgaged to defendant No, 1 Gupte for Rs. 16,000 certain land occupied by a factory and mill machinery. In 1921, defendant No. 1 Gupte sub-mortgaged the property--according to one party an undivided one-third, according to the other the whole--to the plaintiff for Rs. 10,000. Defendant No. 2 likewise mortgaged a small chawl. The plaintiff now sues both the defendants on the mortgage of 1921 and claims Rs. 16,000 as due from them, first by the sale of the mortgage properties, and the balance personally. Defendant No. 2 raised the plea of limitation, and the plaintiff has obtained an attachment before judgment of the decree above.
3. It is urged for defendant No. 2-appellant that the Court has no power to attach before judgment property which is not the subject-matter of the mortgage, inasmuch as the personal remedy under Order XXXIV, Rule 6, Civil Procedure Code, can only come into effect after the final decree and if the sale price of the property proves inadequate. It is argued for the respondent that such a power is not outside the purview of Order XXXVIII, Rules 5 and 6, Civil Procedure Code, as has been expressly affirmed in decisions such as Rani Jotirmoyee Debi v. Raghunath Pathak ILR (1924) Pat 966, Jogemaya Dassi v. Baidyanath Pramanick ILR (1918) Cal. 245, and Bishambar Sahai v. Sukhdevi ILR (1891) All. 186. I agree with the reasoning and the conclusions of these judgments, particularly the decision in Bishambar Sahai v. Sukdevi. Order XXXVIII, Rule 5, only requires the plaintiff to prove that the defendant is about to dispose of any portion of his property within the local limits of the jurisdiction of the Court. The law does not expressly except mortgage suits from the purview of this rule. It follows that where there is a reasonable probability of the mortgaged property not sufficing, the Courts could exercise the power, if the requirements of Order XXXVIII, Rule 5, Civil Procedure Code, are complied with. As has been observed in Bishambar Sahai's case (page 188):--
We should say that in our opinion a Court should act with extreme caution in proceeding under Section 483 of the Code of Civil Procedure to attach non-hypothecated property in a suit for sale under a mortgage, and should be thoroughly satisfied, amongst other things, before making an order under that section, that the hypothecated property would be insufficient to discharge the mortgage debt.
4. In the present case, on his own showing the appellant had sold away a substantial portion of the hypothecated machinery, the reason assigned by him being that the machinery had deteriorated. It appears to me that this reason strengthens the case for the respondent. If the machinery has so deteriorated since the mortgage as to render its immediate sale necessary, pro tanto, the value of the hypothecated property is substantially reduced, and a personal decree is all the more probable. It also appears that in respect of the five annual installments of Ra 3,000 the appellant had on two occasions assigned the installments before they fell due, so as to raise a reasonable apprehension in the respondent's mind of a similar action in regard to the two installments outstanding. For these reasons the lower Court had, in my opinion, power to attach before judgment the installment decree, and in the circumstances referred to above the exercise of that power was abundantly justified.
5. The appeal is dismissed with costs.