1. Lal Umrao Singh, judgment-debtor (the applicant in revision here) held a simple mortgage bond which was attached and sold by Lai Singh, the first opposite party here, in execution of a decree. On the 23rd of October, 1922, the judgment-debtor sent the money by telegraphic money-order, but it arrived after the sale. The 24th being a, Sunday, he deposited, the money on the 25th, and on the 28th filed an application under Order XXI, Rule 89, to get the sale set aside. The decree-holder objected that the simple mortgage, bond- not being 'immovable property,' the sale could not be set aside-The Munsif disallowed this objection holding that a mortgagee's rights, whether the mortgage was simple or usufructuary, constituted' 'an interest in immovable property,' that, the fact that the property attached was attached as movable, did not render it movable once for all and that it. was immovable within the meaning of the term in the Transfer of Property Act.
2. The District Judge, on appeal, relying on Nataraja Iyer v. The South Indian Bank of Tinnevelly (1911) I.L.R. 37 Mad. 51 and Karim-un-nissa v. Phul Chanel (1893) I.L.R. 15 All. 134, allowed, the appeal, holding the simple mortgage bond to be movable property and held that, that being so, the sale could not be. set aside. The judgment-debtor asks us to revise this order.
3. For the applicant no serious attempt has been made to show that a simple mortgage bond is not ''movable property' for the purpose of determining the procedure appropriate to attachment and that such procedure is not contained in Order XXI, Rule 46 (Section 268 of the old Code). That is a. position he could hardly take up in face of the provisions of the Code of Civil Procedure and adverse authority. Compare Karim-un-nissa v. Phul Chand (1893) I.L.R. 15 All. 134, Tarvadi Bholanath Harishanker v. Bai Kashi (1901) I.L.R. 26 Bom. 305, Bantu v. Ganda Singh (1908) 1 Indian Cases 450, Nataraja Iyer v. The South Indian Bank of Tinnevelly (1911) I.L.R. 37 Mad. 51 (and cases there quoted) and Shah -Mohammad Yusuf v. Lachmi Narain (1918) 50 Indian Cases 157.
4. Karim-un-nissa v. Phul Chand (1893) I.L.R. 15 All. 134, was referred to in Sheo Charan Lal v. Sheo Sewak Singh (1896) I.L.R. 18 All. 469, but not overruled and Bantu v. Ganda Singh (1908) 1 Indian Cases 450, was referred to and distinguished but not overruled in Sewa Ram v. Dheru Shah (1913) 18 Indian Cases 318. The applicant, however, contends that while a simple hypothecation bond may be treated as movable property for the purpose of attachment and the procedure of Order XXI, Rule 46, be applicable, it does not follow that it is not 'immovable property' for the purpose of the sale and setting aside of the sale under Order XXI, Rule 89, and he has referred to Musammat Bhawani Kuar v. Gulab Rai (1877) I.L.R. 1 All. 348, Sheo Charan Lal v. Sheo Sewak Singh (1896) I.L.R. 18 All. 469, Mutsaddi Lal v. Muhammad Hanif (1912) 10 A.L.J. 167, Sewa Ram v. Dheru Shah (1913) 18 Indian Cases 318, Ram, Sarup v. Harpal (1916) I.L.R. 39 All. 200 and Hafiz-uddin v. Jadu Nath (1908) 12 C.W.N. 820.
5. Of these 1 Allahabad, 348, was shown in 15 Allahabad, 134, to be no longer law. Of the others, 18 Allahabad, 469, 10 A.L.J. 167, 12 C.W.N. 820, and 39 Allahabad 200, have very little bearing, if any, on the point. But the ruling or Kensington, J., in 18 Indian Cases 318, does go the whole length of his contention. The learned Judge held: 'It does not follow that because a mortgage debt is to be treated as movable property for the purpose of attachment under Rule 46, it should, therefore, be considered as movable property in all cases and for that, as well as for another reason, ordered the lower court to hear the application for setting aside the sale. In support of his view the learned Judge relied only upon 58 P.R. 1899, in which it was held, in a, case dealing with the rights of a Hindu female heir to alienate, that a mortgage debt is immovable property.
6. The opposite party, on the other hand, contends that the bond, being certainly attached as movable property, must be held to be sold as movable property. The first part of this contention is,, as 1 have already said, well established and in effect admitted. In support of the conclusion it may be said. that in two of the cases quoted, Karim-un-nissa v. Phul Chand (1893) I.L.R. 15 All. 134 and Nataraja Iyer v. The South Indian Bank of Tinnevelly (1911) I.L.R. 37 Mad. 51, language was used which suggests that, in the minds of the learned Judges, what was movable for the-purposes of attachment was movable for the purposes of sale. A consideration of these authorities and another to which I shall refer and particularly of the nature of a simple hypothecation bond, leaves no doubt in my mind that the contention of the opposite party is correct, that the bond is movable property for all three purposes, attachment, sale and setting aside the sale under Order XXI, Rule 89.
7. The learned Munsif has held that the bond constitutes an 'interest in immovable property' and is, therefore, 'immovable property' within Rule 89. Is the premise correct? A simple mortgage bond carries with' it two rights; a- right to a decree for money and to, a decree for sale'. The-latter gives the mortgagee a right to be recouped from the sale proceeds but gives absolutely no right of any sort to or in the land. He has not even a right to all the sale proceeds but to only so much as may be necessary to meet his debt.
8. In 26 Bombay, 305, Chandavarkar, J., said at page 311: 'A simple mortgage creates a right to recover the debt due on it from land; a mortgage with a right of foreclosure creates a right to recover the land itself. Therefore a debt due on a simple mortgage is a debt, though it is secured on land, and the security is, merely collateral.' What justification is there for holding that a simple hypothecation bond creates 'an interest in immovable property'
9. Next we have the consideration, clearly stated by Jenkins, C.J., in the case in, 26 Bombay, 305, just referred to and concurred in by Chandavarkar, J., quoting 19 Bombay, 121, that the debt has been sold and that certainly the sale of the debt cannot be set aside, and that the security must 'go with the debt. It is urged for the applicant that from the mere fact that for the purposes of the procedure for attachment it is convenient to treat the bond as movable, it does not follow that other considerations as to the attributes of the property to be affected or possibly affected did not determine its nature when the Legislature was considering its-sale and the consequences to follow from its sale. This may be conceded but there is no evidence to show that this consideration did weigh with the Legislature or that effect was given to such considerations. On the other hand, it must be conceded, that, in the absence of a clear, intention to the contrary, what is held to be movable property at the time of the attachment may reasonably be considered to continue to be movable at the time of the sale, and I find myself in agreement with the view of Chandavarkar, J., in 26 Bombay, 305, at page 312, where he further says that, even assuming that ' it is an interest in immovable property and as such is immovable property itself, we have, as I said at the outset, a clear indication of the intention of the Legislature that for the purposes of the Code of Civil Procedure it should be treated, as movable property.'
10. Lastly, to hold that it is not immovable property is consistent with the definition of 'immovable property' to be-found in the General Clauses Act, Section 3(25). The expression 'benefits to arise out of land' was never intended to cover such a matter as the security held by the mortgagee under a simple mortgage bond, but such benefits as the right to a ferry.
11. For these reasons I have no hesitation in holding that a simple hypothecation bond is 'movable property' not only for the purposes of attachment but also for the purposes of sale, and Order XXI, Rule 89, has no application.
12. It is not clear that any question affecting the jurisdiction of the District Judge arises in this case, such as would justify this Court in interfering in, revision, were we otherwise inclined 'to do so, but we had heard much argument before this point emerged and we thought it desirable then to hear the argument, put as the matter appears not to have been definitely deter-mined by this Court and is one which might arise again at any time. I would dismiss the application.
Walsh, Acting C.J.
13. I have read the judgment of my brother Boys and I agree with it.
14. The order of the Court is that the application is dismissed with costs.