1. Lal Umrao Singh judgment debtor (the applicant in revision here) hold a simple mortgage-bond which was attached and sold by Lal 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 Rule 89 to get the sale set aside, The decree-holder objected that the simple mortgage-bond not being 'immoveable 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 immoveable property,' that the fact that the property attached was attached as moveable did not render it moveable once for all and that it was immoveable 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 18 Ind. Cas. 91 : 37 M. 51 : 10 M.L.T. 503 : (1911) 2 M.W.N. 590 : 22 M.L.J. 105 and Karim-un-nissa v. Phul Chand 15 A. 184 : A.W.N. (1893) 51 : 7 Ind. Dec. (N.S.) 803 allowed the appeal holding the simple mortgage-bond to be moveable 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 'moveable 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 15 A. 184 : A.W.N. (1893) 51 : 7 Ind. Dec. (N.S.) 803; Tarvadi Bholanath Harishanker v. Bai Kashi 26 B. 305 : 4 Bom. L.R. 18; Bantu v. Ganda Singh 1 Ind. Cas. 450 : 18 P.R. 1909 22 P.W.R. 1909; Nataraja Iyer v. The South Indian Bank of Tinnevelly 18 Ind. Cas. 91 : 37 M. 51 : 10 M.L.T. 503 : (1911) 2 M.W.N. 590 : 22 M.L.J. 105 Shah Muhammad Yusuf v. Lachmi Narain 60 Ind. Cas. 157 : 21 O.C. 400 : 6 O.L.J. 49.
4. Karim-un-nissa v, Phul Chand 15 A. 184 : A.W.N. (1893) 51 : 7 Ind. Dec. (N.S.) 803, was referred to in Sheocharan Lal v. Sheo Sewak Singh 18 A. 469 : A.W.N. (1896) 154 : 8 Ind. Dec. (N.S.) 1018 but not overruled and (Bantu v. Ganda Singh 1 Ind. Cas. 450 : 18 P.R. 1909 22 P.W.R. 1909 was referred to and distinguished but not overruled in Sewa Ram v. Dheru Shah 18 Ind. Cas. 318 : 125 P.L.R. 1918 : 79 P.W.R. 1913. The applicant, however, contends that while a simple hypothecation bond may be treated as moveable property for the purpose of attachment and the procedure of Order XXI, Rule 46 be applicable, it does not follow that it is not 'immoveable property' for the purpose of the sale and setting aside of the sale under Order XXI, Rule 89 and he has referred to Bhawani Kuar v. Gulab Rai 1 A. 348 : 1 Ind. Jur. 704 : 1 Ind. Dec. (N.S.) 238; Sheo Charan Lal v. Sheo Sewak Singh 18 A. 469 : A.W.N. (1896) 154 : 8 Ind. Dec. (N.S.) 1018; Mutsaddai Lal v. Muhammad Hanif 15 Ind. Cas. 863 : 10 A.L.J. 167; Sewa Ram v. Dheru Shah 18 Ind. Cas. 318 : 125 P.L.R. 1918 : 79 P.W.R. 1913; Ram Sarup v. Harpal 39 Ind. Cas. 663 : 15 A.L.J. 38, at p. 37 : 39 A. 200 and Hafizuddin v. Jadu Nath 12 C.W.N. 820 : 35 C. 298 : 7 C.L.J. 279.
5. Of these Bhawani Kuar v. Gulab Rai 1 A. 348 : 1 Ind. Jur. 704 : 1 Ind. Dec. (N.S.) 238 was shown in Karim-un-nissa v. Phul Chand 15 A. 184 : A.W.N. (1893) 51 : 7 Ind. Dec. (N.S.) 803 to be no longer law. Of the others, Sheo Charon Lal v. Sheo Sewak Singh 18 A. 469 : A.W.N. (1896) 154 : 8 Ind. Dec. (N.S.) 1018; Mutsaddi Lal v. Muhammad Hanif 15 Ind. Cas. 863 : 10 A.L.J. 167; Hafizuddin v. Jadu Nath 12 C.W.N. 820 : 35 C. 298 : 7 C.L.J. 279 and Bam Sarup v. Harpal 39 Ind. Cas. 663 : 15 A.L.J. 38, at p. 37 : 39 A. 200 have very little bearing, if any, on the point. But the ruling of Kensington, J. in Sewa Ram v. Dheru Shah 18 Ind. Cas. 318 : 125 P.L.R. 1918 : 79 P.W.R. 1913 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 moveable property for the purpose of attachment under Rule 46, it should, therefore, be considered as moveable 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 Sant Singh v. Jowala Singh 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 immoveable property.
6. The opposite-party, on the other hand, contends that the bond being certainly attached as moveable property must be held to be sold as moveable property. The first part of this contention is, as I 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 15 A. 184 : A.W.N. (1893) 51 : 7 Ind. Dec. (N.S.) 803 and Nataraja Iyer v. South Indian Bank of Tinnevelly 18 Ind. Cas. 91 : 37 M. 51 : 10 M.L.T. 503 : (1911) 2 M.W.N. 590 : 22 M.L.J. 105, language was used which suggests that, in the minds of the learned Judges, what was moveable for the purposes of attachment was moveable 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 moveable 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 immoveable property' and is, therefore, 'immoveable 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 Tarvadi Bholanath Harishankar v. Bai Kashi. 26 B. 305 : 4 Bom. L.R. 18 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 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 immoveable property.'?
9. Next we have the consideration clearly stated by Jenkins, C.J. in the case Tarvadi Bhalanath Harishankar v Bai Kashi 26 B. 305 : 4 Bom. L.R. 18 just referred to and concurred in by Chandavarkar, J., quoting Balde Dhanrup Marvadi v. Ramchandra Balvant 19 B. 121 : 10 Ind. Dec. (N.S.) 81 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 moveable, 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 moveable property at the time of the attachment may reasonably be considered to continue to be moveable at the time of the sale, and I find myself in agreement with the view, of Chandavarkar J. in Tarvadi Bholanath Harishankar v. Bai Kashi 26 B. 305 : 4 Bom. L.R. 18 where he further says, that even assuming that 'it is an interest in immoveable property and as such is immoveable 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 moveble property.'
10. Lastly, to hold that it is not immoveable property is consistent with the definition of 'immoveable 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 'moveable 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 out as the matter appears not to have been definitely determined by this Court and is one which might arise again at any time. I would dismiss the application.
13. I have read the judgment of my brother Boys and I agree with it.
By the Court
14. The order of the Court is that the application is dismissed with costs on the higher scale, (if any).