1. The circumstances which have given rise to this appeal are as follows:-- On the 12th of May 1908 a mortgage was executed by Chater Singh in favour of Kamla Kant and a suit was brought to recover the amount due on this mortgage-deed by the mortgagee. This sail was contested by the minor son of the mortgagor and a subsequent transferee Nageshar Prasad. It appears that the Court held that this mortgage was not for family necessity and was not binding on the family at all, and ultimately only a simple money-decree was passed against the mortgagor. The mortgagee has put this decree in execution and attached property, i.e., the rights and interests of the mortgagor in the joint property which had originally been mortgaged. An objection was raised that inasmuch as this very property had been mortgaged under the mortgage-deed, the mortgagee was not entitled to sell this property in execution of the simple money-decree unless and until a separate suit was brought under the provision of Order XXXIV, Rule 14. The Court below has not accepted this contention: hence this appeal.
2. In our opinion the provisions of Order XXXIVI, Rule 14 cannot apply to the facts of this case because the mortgagee, seeing the force of the defendant's contention that the mortgage was not enforceable, had to abandon his claim and rested content with only a simple money-decree. The effect of that decision was that the mortgage was held to be unenforceable and the mortgagee only obtained a simple money-decree against the mortgagor. In our opinion there is no longer any subsisting mortgage and it is not open to the mortgagee to bring a separate suit for the enforcement of such a mortgage as provided for in Order XXXIV, Rule 14. He is clearly entitled to attach the interest of the mortgagor and put it up for sale. This view was taken in the ease of Chedi Lal v. Saadatunnissa Bibi 86 Ind. Cas. 907: 14 A.L.J. 902 : 39 A. 36, in which it was held that the term 'mortgagee' in Rule 14 of Order XXXIV of the Code of Civil Procedure was intended to mean the holder of a subsisting and effective mortgage which could still be set up by the mortgagee against a purchaser or would-be purchaser of the mortgaged property. No such subsisting mortgage exists in the present case. We are satisfied that the view taken by the lower Court is correct and we accordingly dismiss this appeal with costs.