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Mubarak HusaIn Vs. Ahmad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1924)ILR46All489
AppellantMubarak Husain
RespondentAhmad
Cases ReferredKatwari v. Sita Ram
Excerpt:
civil procedure code, section 60, proviso (c) - house mortgaged by agriculturist--decree for sale on foot of mortgage--house saleable in execution of such decree. - - 3. on the one hand, the section distinctly prohibits the sale of this property in execution of a decree. there, was, therefore, no good reason why he should not be allowed to sell it in satisfaction of a claim unconnected with the mortgage. when a creditor obtains a decree for a debt, and the debtor pays after the decree, the decree is satisfied, not executed. an unsecured creditor who chooses to give credit to a poor man who has no credit and no property beyond the bare instruments with which he ekes out his livelihood, has only himself to thank, and cannot complain if the law steps in to prevent him from selling up his.....walsh, j.1. two questions are involved in this reference, the first is, whether the exemptions from attachment and sale in execution of a decree, contained in the proviso to section 60 of the code, apply to a mortgagee's decree for sale.2. i have had the advantage of studying the judgments of my two brothers. they fully cover the ground and it is not necessary to do so again. they differ fundamentally, and each judgment appears on the face of it to be unanswerable.3. on the one hand, the section distinctly prohibits the sale of this property in execution of a decree. on the other hand, as mr. justice mukerji's judgment shows, there is much in the section which is inappropriate to a mortgagee's decree for sale.4. where a section of an act is capable of two renderings, or is said to mean.....
Judgment:

Walsh, J.

1. Two questions are involved in this reference, The first is, whether the exemptions from attachment and sale in execution of a decree, contained in the proviso to Section 60 of the Code, apply to a mortgagee's decree for sale.

2. I have had the advantage of studying the judgments of my two brothers. They fully cover the ground and it is not necessary to do so again. They differ fundamentally, and each judgment appears on the face of it to be unanswerable.

3. On the one hand, the section distinctly prohibits the sale of this property in execution of a decree. On the other hand, as Mr. Justice Mukerji's judgment shows, there is much in the section which is inappropriate to a mortgagee's decree for sale.

4. Where a section of an Act is capable of two renderings, or is said to mean less or more than it says, it is a maxim of interpretation that one must look at the scope and object of the enactment. For this purpose it is helpful to recall the history.

5. The rights of a mortgagor have always been the special care of courts of equity. The equity, of redemption was jealously guarded and could not be sold without an order of the court and without the mortgagee in possession rendering an account. The codified law in India sought to give effect to the established principles of the English courts for enforcing a mortgage security, by the now repealed sections of the Transfer of Property Act. Great controversy having arisen as to the applicability of the provisions of the Code td the enforcement of a mortgagee's decree for sale, it was decided, when the Code was amended in 1908, that this part of the Transfer of Property Act relating to mortgagees' suits for sale, being a question of procedure, should be incorporated in the Code. This was effected by the present Order XXXIV.

6. The mortgagee's right of sale is carefully hedged round by provisions which are familiar and which have no place in the execution of an ordinary money decree. For example, the preliminary decree still gives the mortgagor a period within which he may redeem. The courts never allowed the sale of the bare equity of redemption under a judgment on the covenant. In other words, the mortgagee cannot have execution against the mortgaged property under a decree for the simple mortgage debt. This provision is preserved in Order XXXIV, Rule 14. The mortgagee is not to be allowed to bring the mortgaged property to sale, 'otherwise than by instituting a suit for sale in enforcement of the mortgage.' There is nothing illegal in a covenant for sale, as Section 69 of the Transfer of Property Act shows. But the question before us relates to the enforcement by the court. The change introduced into Order XXXIV, Rule 14, as opposed to Section 99 of the Transfer of Property Act which it replaced, is significant. The mortgagee was under the old law prohibited from bringing the mortgaged property to sale in satisfaction of a claim, 'whether arising under the mortgage or not.' But it was always competent for the mortgagee to purchase the equity by an agreement subsequent to and independent of the mortgage transaction. There, was, therefore, no good reason why he should not be allowed to sell it in satisfaction of a claim unconnected with the mortgage. So the new Code dropped the old form of words and reduced the prohibition to claims 'arising under the mortgage.' The important point is that the prohibition is found, not in that part of the Code which relates generally to execution, but in that which deals particularly with the enforcement of mortgage decrees. All this shows, that by the scheme of the present Code, execution and the enforcement of mortgage decrees are mutually exclusive, at any rate, where inconsistent.

7. I am doubtful whether according to the strictly juristic view, the sale of mortgaged property under a mortgagee's decree for sale is really 'execution' at all. It is satisfaction of the decree. When a creditor obtains a decree for a debt, and the debtor pays after the decree, the decree is satisfied, not executed. If the debtor does not pay, the law executes the decree, if it can, by realizing the amount out of any available property of the debtor which it attaches and sells. In the case of a mortgage decree, the property ordered to be sold is not something which is compulsorily substituted for the obligation contained in the contract and carried forward into the decree. It is the obligation itself. The sale is the' satisfaction of the contract and of the decree. Sir Comer Petheram took this view in the course of a judgment in the case of Maseyk v. Steel and Co. (1887) I.L.R. 14 Calc. 661, 668, where he spoke of the decree being one 'for specific performance of the contract between the mortgagor and the mortgagee.' This view, namely that such a sale is not the execution of a decree, derives support, though no authority, from the original intention of the jurists who framed the present Code, in dealing with the general provisions relating to execution which begin with Section 36, to emphasize the dichotomy by defining the territorial jurisdictions of 'the court executing a decree' only to the extent to which it was competent to pass a decree, and of 'the court which passed & decree' for the enforcement of a mortgage, to selling the mortgaged property wherever situate.

8. I agree with Mr. Justice Lal Gopal Mukerji that the use of the word 'such' removes the distributive force which the word 'or' in 'attachment or sale would otherwise have. It must mean attachment or sale in execution of a decree.' And for the reasons given above, I have come to the conclusion that a sale under a mortgagee's decree is not a sale in execution of a decree, and that, therefore, the proviso does not apply. This is not to say that the procedure is not, after decree, for the execution side. Any question which may arise relates to 'the satisfaction of the decree,' and is, therefore, within Section 47.

9. I was throughout pressed by the contention that under the law thus interpreted a mortgagee can sell his property, whereas a simple decree-holder cannot, and that such a result is illogical and against the policy of the Legislature. In: other words, to quote the dissenting judgment of Mr. Justice Banerji in Bhola Nath v. Musammat Kishori (1911) I.L.R. 34 All. 25, the object was 'to protect people against their own improvidence.' These speculations are dangerous and are apt to attribute more consistency and foresight to the Legislature than is usually found in fact. But, in truth, there is no lack of justification for the law as I understand it. An unsecured creditor who chooses to give credit to a poor man who has no credit and no property beyond the bare instruments with which he ekes out his livelihood, has only himself to thank, and cannot complain if the law steps in to prevent him from selling up his debtor completely for a debt in respect of which he took an obvious risk. But a creditor who has taken security is in a different position. It may be assumed that he would not have advanced the money at all unless he was given the security, and the debtor has voluntarily agreed to part with the property with his eyes open and knowing the consequences.

10. It seems to follow from the reasons which I have given above on the first question, that t agree with Mr. Justice Ryves that the point is one which is properly taken in execution. I think it matters very little. The court; is often the same. I do not know how the point could be pleaded in defence to the mortgagee's suit. As Mr. Justice Mukerji points out, the mortgage is not prohibited or illegal. If raised in the suit, the Judge might well say that the objection was premature, at that stage and reserve it for the post-decree proceedings. It is an objection to enforcement of the decree when made, the decree being unobjectionable. In a word, the objection presupposes a valid decree. If the mortgagor has no saleable interest, that is a matter which concerns the purchaser who acquires no greater interest than is saleable.

11. It is to be hoped that this view, although arrived at by a bare majority of the Court, will be accepted as final as there, has hitherto been great diversity of judicial decision.

Ryves, J.

12. This is a decree-holder's second appeal in execution.

13. The judgment-debtor mortgaged two houses to the decree-holder. In a suit on the mortgage the decree-holder obtained an ex parte decree under Order XXXIV, Rule 4, of the Code of Civil Procedure, and that was made absolute under Rule 6 of the same order. The judgment-debtor so far raised no defence. When, however, the decree-holder applied for the sale of the houses, he took objection, inter alia, that 'he was a cultivator by occupation and the houses sought to 6e sold by auction in this case were used by him as such. The implements of husbandry were kept in them. The cattle were also tethered in them. They were not used by the objector as dwelling houses. Therefore they should not be sold by auction, according to law.' This objection was disallowed by the court executing the decree. On appeal the lower appellate court found as follows: 'It is clear from the evidence adduced by the appellant, and which has not been rebutted by the decree-holder respondent, that the objector is an agriculturist and occupies both the houses as such. The finding of the lower court that these houses are not appurtenant to the land he cultivates is clearly wrong. The irresistible conclusion from the evidence on the record is that the houses in dispute belong to an agriculturist.'

14. Having come to this finding which, of course, is binding on us, he decided that under Section 60 of the Code of Civil Procedure, following the ruling in Niadar Singh v. Sabit Khan (1919) 51 Indian Cases 553, to which I shall refer later, the houses could not be sold in execution of the mortgage decree.

15. The decree-holder comes here in second appeal.

16. In view of the fact that there are two reported decisions of this Court which are directly in conflict, the case has been referred to a Bench of three Judges.

17. The question before us is, shortly, whether Section 60(1)(c) of the Code of Civil Procedure bars the sale in this case.

495 No. Tif Missing.

is made for mortgage decrees in Order XXXIV. This argument is based on two grounds:

(1) Section 60 comes in that part of the Code which deals with 'attachment', and attachment is not necessary in mortgage decrees. Before property can be sold in execution of a money decree, the court must first attach it, so as to bring it within its jurisdiction, and then sell it. In a mortgage decree, the decree itself specifically directs the sale of the mortgaged property. It seems to me, apart from all authority, that the proviso to the section is perfectly general and applies to all decrees. I think so, firstly, because, if it was meant to apply only to simple money decrees, it would have been very easy for the Legislature to have said so; and, in the second place, reading the exceptions, I think that the Legislature from motives of public policy or for other reasons which seemed good to it, but which it is unnecessary for us even to speculate about, has thought fit to prevent a court executing a decree from selling off any of the various particulars detailed in the section.

(2) Another argument on this point is that if Clause (c) was held to apply to houses of an agriculturist which he has mortgaged, it would be tantamount to holding that the mortgage of such houses was illegal, and it would be open to the mortgagor in the suit on the mortgage to raise this objection. I do not think the mortgagor could be heard to raise any such objection; but the question is whether, if a decree is passed for the sale of such a house, the court in execution can or cannot sell it. This question, it seems to me, 'does not fall to arise,' (to adopt a dictum in a recent ruling of the Privy Council), until execution proceedings have been taken.

25. As a matter of fact, in these provinces an agriculturist, that is to say, a cultivator in an agricultural village who cultivates plots of land within the 'mauza' under a lease from the zamindar, is given a house, then unoccupied, or a site in that part of the 'mauza' which is set apart for the tenants and other members of the village community to reside in (called the abadi), and if no house is available on these sites, he is allowed to build houses for himself to reside in and for his cattle employed in cultivation, arid for storing his implements of agriculture. As a general rule, (except in exceptional cases, where a custom to the contrary prevails), such a tenant cannot transfer such Houses at all. All that he can transfer is the materials with which they are built. The site is not his to transfer; it belongs to the zamindar. If such an agriculturist mortgaged his house and the mortgagee obtained a decree for the sale of the house, even if the mortgagor was estopped from objecting to the sale after a decree for its sale had been passed, the zamindar certainly could intervene and prevent the site of the house being sold. It seems to me that the Legislature has gone further and has chosen to forbid the sale of such houses or their materials in execution even of a mortgage decree.

26. Clause (b) of the same section prevents the tools of an artizan being sold in execution of a decree. This does not mean that an artizan cannot raise money on the security or pledge of his tools. It simply means, I think, that if the creditor has to sue and gets a decree against an artizan, he cannot in execution of that decree get such tools sold by the court, even if the decree ordered the sale of the tools. I am fortified in this view, (namely that the bar in execution in no way affects the validity or legality of the contract), by Section 61, which immediately follows and is in the same division of the Act as Section 60. By that section the Local Government with the previous sanction of the Governor-General in Council may declare that such portion of agricultural produce, or of any class of agricultural produce, as may appear to the Local Government to be necessary for the purposes mentioned therein shall be exempted from liability to attachment or sale in execution of a decree. It is a common practice in these provinces for agriculturists to borrow money for the purposes of agriculture on the security of the crops about to be raised. These contracts have always been held, So far as I know, to be perfectly legal, and in execution of a decree the, crops can be attached and sold; but under this section, at any time the Local Government may prevent by notification the sale of such a crop in execution of a decree. This must happen after the contract had been made. It obviously does not make the contract illegal. All it does is to prevent the decree-holder, when he gets his decree, from enforcing it by the sale of the crop hypothecated. He may enforce it otherwise if he can. It seems to me, therefore, that there is no force in this argument, and I think, reading the Act as it stands, that the decision of the court below was right and that the houses mortgaged in this suit cannot be sold in execution, of the mortgage decree, not because the mortgage of the houses was illegal or that the mortgagor could have pleaded that no decree for Bale should be passed, but because the Legislature forbids absolutely such houses to be sold by a court in execution.

27. I now come to discuss the authorities. The first case on the point is Bhagvandas v. Hathibhai (1879) I.L.R. 4 Bom. 25. It was held in that case that Section 266 of the old Code of Civil Procedure, then in force, which is similar to the present Code, does not prohibit the sale of property specifically mortgaged, albeit the property be materials of a house belonging to or occupied by an agriculturist. The judgment is a very short one and the only reason given for the decision is contained in these words: 'We are of opinion that the sale of the house, under these circumstances (namely that the decree directed that the debt should be recovered from the mortgaged property), should be made, for we cannot suppose that it was the intention of Section 266 of Act X of 1877 to prohibit the sale of property specifically mortgaged.'

28. That decision was reported in 1879 and so far as I can find, it has never been referred to since in any reported decision, except in the case of Tola Ram v. Chain Sukh Weekly Notes 1888 p. 154. In that case Edge, C.J., said, distinguishing this ruling: 'It will be time enough to consider that case when I am compelled to do so.' And Mahmood, J., expressed his concurrence. I do not think this case is very helpful.

29. The next case which I have been able to discover is Janki Das v. Sandal (1911) 9 Indian Cases 825. That case was similar to the case before us in its facts. There, too, houses of an agriculturist were mortgaged and no exception was taken by the mortgagor in the suit on the mortgage that the houses were not capable of transfer. It was only when the decree was put into execution that the judgment-debtor urged, for the first time, that he being an agriculturist, the houses were not liable to attachment and sale. The learned Judges (Knox and Karamat Husain, JJ) held: 'We have been referred to no authority which lays down that houses of agriculturists are property which cannot by law be transferred. Section 60 of the Code of Civil Procedure, upon which reliance is placed, refers to houses of agriculturists and enacts that in execution of a money decree, such houses are as a rule not capable of attachment or sale.

30. It seems to me that in this sentence which I have italicized the learned Judges begged the question before us when they said that Section 60 enacts that in execution of a money decree such houses cannot be sold, and this is the ratio decidendi of the case.

31. The next case is Ram Dial v. Narpat Singh (1909) I.L.R. 33 All. 136. In that case an occupancy tenant mortgaged a grove, which was his occupancy holding, and a house appurtenant to such holding. It was there held by Sir John Stanley, C.J., and Banerji, J., that under Section 20(2) of the Agra Tenancy Act, 1901, and Section 266 of the Code of Civil Procedure of 1882, respectively, neither the grove nor the house could be sold in execution of a decree on the mortgage.

32. The next case to which we need refer is the Full Bench case of Bhola Nath v. Musammat Kishori (1911) I.L.R. 34 All. 25, where the same question again came up for decision. Sir Henry Richards, C.J., and Mr. Justice Tudball held that Section 60 of the Code of Civil Procedure did not operate to bar the sale of a house belonging to an agriculturist in execution of a decree on a mortgage of the same, if such house is not an appurtenance of the mortgagor's holding which he is prohibited by law from mortgaging or transferring. Mr. Justice Banerji dissented. I have some doubt how far this case really applies, having regard to the observations of the Chief Justice. Sir Henry Richards says: 'The argument on behalf of the respondents is that by virtue of the proviso (to Section 60), the house of the defendants cannot be sold, and that inasmuch as the house cannot be sold in execution of the decree, no mortgage decree ought to be made. On the other hand, the appellant argues that Section 60 does not apply to mortgage decrees at all, that it deals entirely with attachment and sale in respect of pimple money decrees.' He goes on to hold: 'Prima facie a man is entitled to mortgage his property if he pleases; and if he can make a valid mortgage, the mortgagee is entitled to a mortgage decree entitling him to sell the property.'

33. With great respect it seems to me that this argument does not entirely meet the case. It does not answer the objection that in spite of a contract, the Legislature has ruled that the contract shall not be enforced by sale of the mortgaged house. I also cannot agree with the rest of the judgment in which it is held that Section 60 applies only to the execution of simple money decrees. It seems to me that the dissentient judgment of Mr. Justice Banerji is unanswerable and I wish to adopt it in its entirety as the basis of my decision in this case. As he says, when dealing with the point as to whether Section 60 applies only to simple money, decrees, 'At the commencement of the section the word 'and' is used and in the proviso we find the word 'or'. The proviso, as I understand it, forbids both attachment and sale, that is to say, where, an attachment must precede a sale, it forbids attachment as well as sale, and where it is not necessary that an attachment should be a preliminary step to a sale, it forbids sale.... The object of the Legislature is manifest. That object is that certain classes of debtors should be protected against their own improvidence. There can be no doubt that in the case of a simple decree for money, the dwelling house occupied by an agriculturist cannot be sold. The policy of the law is that he should not be deprived of his place of residence by a process of court. I fail to see why, if an unsecured creditor of the agriculturist cannot proceed against the debtor's dwelling house, a secured creditor should be allowed to do so. The policy of the law equally applies to both the cases.'

34. The last case to which reference need be made is the case of Niadar Singh v. Sabit Khan (1919) 51 Indian Cases 553. This is the case on which the lower court based its decision.

35. There the question was whether the house of an agriculturist, which has been found to be appurtenant to his agricultural holding, is liable to sale in execution of a decree obtained upon a mortgage of the house made by the agriculturist. The appeal came first before Sir George Knox sitting alone, and he remanded it for a finding as to whether the house was in the occupation of an agriculturist, and on the finding being returned in the affirmative, he dismissed the appeal holding that Section 60(c) barred the sale in execution. From that decision there was an appeal under the Letters Patent which was heard by Sir P.C. Banerji and Mr. Justice Rafiquje, and they, after referring to the decision already quoted in Bhola Nath v. Musammat Kishori (1911) I.L.R. 34 All. 25, held that the provisions of Section 60(c) applied and dismissed the appeal. It seems to me, therefore, that the weight of authority in this Court, at any rate, is in favour of the view taken by the court below.

36. The provisions of Section 60(c) of the present Code were certainly in existence in 1877, before the Transfer of Property Act came into being; see Act X of 1877, Section 266. All that was done when the present Code was passed was to transfer the rules governing suits on mortgages from the Transfer of Property Act to the Code; that is to say, the sections relating to suits on mortgages (where such suits were necessary, i.e. subject to mortgages included in Section 69) which were contained in Section 85 and following sections, (being really rules of procedure), were cut out of the Transfer of Property Act, and were reproduced with such modifications and amendments as seemed then necessary, and consolidated in Order XXXIV. The law has not been materially altered, the only real alteration has been in the volume of the statute law in which it is to be found, i.e. in Act No. V of 1908 instead of in Act No. IV of 1882. It seems to me, therefore, that this reshuffling of the sections in the statutes does not help in interpreting the meaning of the old Section 266 of Act X of 1877 which is still in force.

37. I much regret I cannot agree with either of my learned brothers. I would, therefore, dismiss the appeal.

Mukerji, J.

38. This case has been referred to a Bench of three Judges because of a conflict of opinion existing between two cases, each decided by a Bench of two Judges. These cases are: Janki Das v. Sandal (1911) 9 Indian Cases 825 and Niadar Singh v. Sabit Khan (1919) 51 Indian Cases 553. The matter for decision has not Keen put down in the form of a question. But; it may be put down as this: 'Whether a judgment-debtor can raise the plea, in the execution department, that he is an agriculturist and the houses occupied by him cannot be sold, having regard to the provisions of Section 60 of the Code of Civil Procedure, although the decree is one of mortgage and orders specifically the sale of such houses'

39. In the referring order there is an inaccuracy. It has been stated that the judgment-debtor also pleaded that his houses were appurtenant to his holding. As a matter of fact, he did not raise any such plea in his objection. He was unsuccessful in the court of first instance, and he filed an appeal. In the grounds of appeal, too, he did not say that the houses were an appurtenance to his holding. The expression, viz., 'the houses were appurtenant to the holding' appears in the judgments of the lower courts and was probably due to a confusion of ideas. When a landholder sues a tenant for his ejectment from his dwelling house in the village in which he cultivates lands, the tenant often takes the plea that the house is an appurtenance to the holding and so long as he cultivates lands in the village he cannot be ejected. In such cases alone the question arises whether the house is or is not an appurtenance to the holding. It will be noticed that in Section 60 of the Code of Civil Procedure, Clause (c), the property exempted is 'the houses and other buildings...belonging to an agriculturist and occupied by him.' Nothing is said about the house or the building being an appurtenance of his holding.

40. Referring to the Tenancy Act, it will be seen that a holding is a parcel or parcels of land held for agricultural purposes. The prohibition is against the sale of such lands. A house or building is not land let for an agricultural purpose and cannot form a holding. Therefore the question of its transferability or otherwise must be determined with reference only to Section 60 of the Code of Civil Procedure.

41. To go back to the question for decision. This question resolves itself into two portions. The first question is 'whether the court executing the decree can go behind the express orders of the decree by which the property has been ordered to be sold'? The second question is 'whether on a proper construction of Section 60 of the Code of Civil Procedure the sale of an agriculturist's house (the expression is used for the sake of brevity), not in execution of a simple money decree in which a previous attachment is necessary, but in execution of a mortgage decree which has been passed on foot of a contract of mortgage specifically making the property a security for the debt, is prohibited?'.

42. On the first question. The decree passed may be a right decree or it may be a wrong decree. A decree may be one that ignores the rules of law. Yet so long as it stands unreversed in appeal or revision, it is a good and binding decree between the parties, and the court executing it cannot go behind its terms and say that the decree should not have been passed and the court will not execute it as it stands. This decree may be one passed on contest or may have been passed ex parte without the defendant appearing to show that the claim of the plaintiff was one that could not at all succeed. In the latter case, the defendant cannot come and say in the execution department that he will show that the decree is a wrong one. He will be estopped on foot of the judgment from raising any such contention, and this, although the question sought to be raised in the execution department was never raised and decided before the decree was made. Take the case of a joint Hindu family. A father makes a mortgage without any legal necessity. In the suit against the father and the sons, the latter do not take any exception to the mortgage, and a decree for sale is made ex parte. When the property is brought to sale in execution of the decree, the sons will not be allowed to show that the mortgage was unauthorized and could not be enforced against the property. Thus the facts which would vitiate the mortgage, although they may exist without any doubt, will not be allowed to be brought before the court. Similarly a suit may be, on the face of the plaint, barred by limitation. But if a court overlooks this fact and makes an ex parte decree, the defendant cannot, in the execution department, show that such was the case. That an ex parte decree may operate as res judicata was held in Ganga Bishan v. Mehar Ilahi (1914) 12 A.L.J. 1011. In the present case, the question whether the house ordered to be sold by the decree is or is not the property of an agriculturist is one of fact and has to be proved before the court, by evidence before the court can accept it. Assuming that such a property is not saleable in execution of a decree, the facts necessary to he established were never alleged before the court making the decree, much less were they proved. If those facts had been proved, the court could have and ought to have (according to our assumption) said that the property could not be sold in execution of a decree, and that it was not going to make a decree which could have no force in law. But these facts were never brought to the notice of the court--the nature of the property was not established before it--and in ignorance of the facts it orders the property to be sold. Why should then, in this particular case, the judgment-debtor be allowed to show by adducing evidence that the nature of the property was such that it could not be sold in the execution of a decree?

43. This question was specifically raised in this Court in the case of Katwari v. Sita Ram (19121) I.L.R. 43 All. 547, which was a case under the Agra Tenancy Act and in which the fact involved, i.e. the nature of the property to be sold, was an admitted fact, being recorded in the mortgage-deed; and the answer given was that it was the duty of the court to obey the law and follow its directions. But the law can be applied only when the proper facts are allowed to be brought before the court. In the case of a mortgage of a joint family property (in the case given as illustration), the sons may not show the nature of the property in the execution department, and the respondent too, in this case, cannot adduce evidence to show the nature of the property. I would, therefore, hold that in the execution department this objection cannot be raised in the teeth of the mortgage decree.

44. Now on the second question. It must be conceded that there is no rule of law which declares the transfer (otherwise than in execution of a decree, as is said to be embodied in the section under discussion) of an agriculturist's house to be illegal. Under Section 6 of the Transfer of Property Act, all properties except those enumerated there, and those the transfer of which is expressly prohibited by law, are declared to be transferable. For example, if there be an agreement between an agriculturist and a third person for the sale of the former's house, and if the latter should sue for the specific performance of the contract, the courts would be bound to recognize the contract and to enforce it. As the result of the enforcement of the contract, the promisee will get possession through the court, for there is no rule of law which lays down that delivery of possession over an agriculturist's house, in execution of a decree, is prohibited. If then the sale by private contract be not prohibited and may be even specifically enforced in a court of law, we have to find out if a lesser contract, viz. that of mortgage, is prohibited and cannot be specifically enforced. For such a proposition of law, there must be a very clear authority and any rule of law that may only by implication be read as leading to this conclusion cannot be accepted as laying down such an anomaly.

45. The question then is, 'Does Section 60 of the Code of Civil Procedure contain any such clear rule as would lead to the conclusion that a property, otherwise transferable, may not be subjected to a transfer, even with the consent of the owner of the property, simply because the agency of the court has to be employed?'

46. Section 60 appears under the head 'attachment'. If we refer to Section 51 of the Code, we shall see that several modes of execution are enumerated there. These are briefly, (a) delivery of possession, (b) attachment and sale or sale without attachment, (c) arrest of the judgment-debtor, and two other modes. Sections 55 to 64 come under the head 'attachment' and Sections 65 to 67 come under the head 'sale'. Thus Section 60 comes under the head of attachment. It does not require the quoting of any authority to maintain the proposition that no property may be sold, in-execution of a simple money decree, unless the same has been attached previously, so as to bring the same within the control as it were of the court. In the case of a sale under a mortgage decree, no attachment is necessary, for the decree,--the order of the court itself--has directed that that property is to be sold. In the execution of a decree for money, every attachment is not followed by sale. For example, when a money decree is attached in the execution of another money decree, the attached decree is not sold but the attached decree is executed and the money realized is applied to the satisfaction of the attaching decree. Similarly when the pay of a Government servant is attached, there is no sale. Only the officer charged with the disbursement of the pay is ordered to deduct a sum month by month and to pay the same towards the satisfaction of the decree. Thus a sale may or may not follow an attachment.

47. Bearing these rules in our mind, let us now read Section 60 of the Code. I have already said, it appears under the head 'attachment'. There is another head bearing, the title of 'sale'. Under the circumstances, there is no reason to think that in dealing with the subject of 'attachment' the writer had in his mind the cases of sales that are not preceded by attachment. Of course, if the language employed should leave no other alternative possible, that is another matter. Section 60, in Sub-section (1), lays down in effect that all properties, over which the judgment-debtor has a disposing power, will be liable to attachment and sale. I have already pointed out that all properties are not sold, in execution of a decree, although they may have been subjected to an attachment. The words 'attachment and sale', therefore, can only mean, 'attachment and sale where the sale is necessary after the attachment'. Otherwise there will be no consistency in the rules. That this is the meaning to be attached to the words 'attachment and sale' is clear from the proviso that follows the Sub-section (1). It provides against 'such attachment or sale' in the case of certain 'particulars'. The use of the word 'such' is important. It, in my opinion, qualifies both the words 'attachment' and 'sale'. The proviso will thus read like this: 'Provided that the following particulars shall not be liable to such attachment or, where necessary, such sale as has been mentioned above in the main section.' To my mind it is impossible to read the word 'sale' in the proviso as meaning 'sale with or without previous attachment', without doing violence to the language of the section. Something might have been said in support of this reading, if the word 'such' had not been there. There is no possible warrant for confining the adjective 'such' to the word 'attachment' alone, for both the words 'attachment' and 'sale' occur in the main section. Among the particulars mentioned in the proviso, there are items which are never sold after attachment; see, for example, Clause (i), dealing with the salary of a public officer. In this case, only an attachment is necessary and no sale. Hence in the proviso the word 'or' has been rightly used.

48. One essential difference in principle between a sale held after attachment and a sale held in pursuance of a contract for sale is this, that in the former case the sale is held against the wishes of the debtor. The court is asked to raise money by the best possible means, and it has been vested with the authority to say that it would not act heartlessly, and in order to make the debtor pay it would not make him absolutely destitute. In the case of a mortgage or hypothecation, the debtor has agreed that a particular property might be taken as the security. So the execution of the decree is held with his consent as it were. There is, therefore, no reason to suppose that a rule of law that talks of attachment and sale in the same breath as it were, was really intended to cover a case of a sale with the consent of the debtor.

49. It is not always a valid mode of reading the new law, to compare it with the old one. Still, in the case of doubt, the old rule, may be looked into. In the old Code also, the language used is the same as in the new Code. The old Section is 266 and it, like the new Section 60, appears under the head of attachment. The head is 'F.--Of Attachment of Property'. Sections 266 to 285 deal with cases and modes of attachment. The next head is 'G.--Of sale and delivery of property'. This head 'G' is divided into three sub-heads. Sub-head (a) deals with 'General rules' and consists of Sections 286 to 295. Sub-head (b) deals with 'Rules as to movable property' and consists of Sections 296 to 303. Sub-head (c) deals with 'Rules as to immovable property' and consists of Sections 304 to 327. It will thus be seen that, under the old Code, the rules as to sale of property, movable and immovable, were distinctly kept separate from the rules as to attachment, and yet in the general section about attachment (Section 266) the same language was used as in the case of Section 60 of the new Code. The new Code having been split up into two portions, fewer sections appear in the body of the Code under the heads 'Attachment, etc.' than in the older Code. The inference is then clear, viz. the rules in Section 60 deal with sales held in execution of decrees in which a previous attachment is necessary, i.e. with sales held in execution of simple money decrees.

50. I will now consider the authorities. In Bhagvandas v. Hathibhai (1879) I.L.R. 4 Bom. 25, it was held that the rule as to attachment and consequent sale did not apply to a sale held in pursuance of a mortgage decree. This was in 1879, but the language of the law was the same in the Code of 1877 as in the Code of 1882. In the case of Ram Dial v. Narpat Singh (1909) I.L.R. 33 All. 136, Stanley, C.J., and Banerji, J., took the view that, even where a house of an agriculturist was mortgaged, it could not be ordered to be sold, in view of the provisions of Section 266 of the old Code and Section 60 of the new one. It will be noticed that one of the grounds for the actual decision of the case was that the mortgagor was a tenant and had mortgaged not only his house but also his holding, and the house might be looked upon as an appurtenance to the holding. The decision cannot, therefore, he looked upon as given solely on a consideration of the law as contained in the Code of Civil Procedure. There is one more point to be noticed. The matter was decided in the suit itself, and it is no authority for the proposition that the point may be raised even after a decree for sale had been made.

51. In the case of Bhola Natk v. Musammat Kishori (1911) I.L.R. 34 All. 25,. Richaeds, C.J., and Tudball, J., held very clearly that Section 60 of the Code of Civil Procedure applied only to the case of an execution of a simple money decree. Banerji, J., dissented and did not think it necessary to change his opinion expressed in the case of Ram Dial v. Narpat Singh (1909) I.L.R. 33 All. 136. I have given my reasons for holding the opinion that I have expressed, and I do not propose discussing the opinions given by the learned Judges in the several cases.

52. The arguments are clear on both sides. The only question is which arguments appeal to a particular Judge. I will draw attention to the fact that in this case also the question arose before the decree and not after it had been made.

53. In Salamat v. Luckhi (1884) I.L.R. 10 Cases 825, it was held that, although a right to an allowance might not be attachable in execution of a simple money decree, having regard to the provisions of Section 266 of the Code of Civil Procedure, it did not lie in the mouth of the judgment-debtor, who had mortgaged the same, to urge that it could not be sold.

54. I have not been able to lay my hand on any other cases bearing directly on the point under consideration. The two cases, which led to this reference, took opposite views. The case of Janki Das v. Sandal (1911) 9 Indian Cases 825 was decided by Knox and Karamat Husain, JJ. The case of Niadar Singh v. Sabit Khan (1919) 51 Indian Cases 553 was decided by Banreji and Rafiq, JJ., who upheld Knox, J. It will thus be seen that the opinion in this Court is very much divided. Stanley, C.J., and Banerji and Rafiq, JJ., took the view opposed to mine, and Richards, C.J., and Tudball and Karamat Husain, JJ., took the same view as taken by me. Knox, J., did not always stick to his view. But all this is on the second point.

55. The case of Katwari v. Sita Ram (1921) I.L.R. 43 All. 547 already referred to was decided on an interpretation of Section 20 of the Agra Tenancy Act and is not directly relevant on the question before us.

56. I am, accordingly, of opinion that an agriculturist may make a valid mortgage of his house, there being nothing in Section 60 of the Code of Civil Procedure Code to the contrary, and that, after a decree for the sale of it has been made on foot ?of a mortgage, it may be sold in execution of the decree and the judgment-debtor is not entitled to raise the point in the execution department.

57. The order is that the appeal is allowed and the objection dismissed, and the order of the first court restored.


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