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Nataraja Iyer Vs. the South India Bank, thro' their Agent Subbiah Iyer and Anr. (16.11.1911 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in13Ind.Cas.91; (1912)22MLJ105
AppellantNataraja Iyer
RespondentThe South India Bank, thro' their Agent Subbiah Iyer and Anr.
Cases ReferredMuniappa Naik v. Subramanib Iyer I.L.R.
Excerpt:
- - there is some diversity of judicial opinion on the question under discussion, but we are satisfied that the weight of opinion is undoubtedly in favour of the view we have taken......a debt secured by a hypothecation bond or a simple mortgage.2. but it is contended that such a debt is immoveable property within the definition of such property as given in the general clauses act as including a benefit arising out of land. it may be that a security of this character is a benefit arising out of land but supposing that this definition would show that a simple mortgage debt would generally speaking be regarded as immovable property, still we have got to see whether the meaning is really what is contemplated by the provisions of the civil procedure code relating to the execution of decrees.3. it seems to us that the provisions of rule 54, order xxi, corresponding to section 274 of the code of 1882 are not meant to apply to property of the nature of a debt secured by a.....
Judgment:

1. The question in this appeal is whether the sale, in execution of a decree, of a debt due to the judgment-debtor under a hypothecation bond is liable to be set aside on the ground of irregularity. It cannot be so set aside, if it is to be regarded, as held by the lower court, as moveable property within the meaning of Order XXI, Rule 46, corresponding to Section 268 of the old Code. The language of Rule 46, which treats as moveable property a ' debt not secured by a negotiable instrument,' is undoubtedly wide enough to cover a debt secured by a hypothecation bond or a simple mortgage.

2. But it is contended that such a debt is immoveable property within the definition of such property as given in the General Clauses Act as including a benefit arising out of land. It may be that a security of this character is a benefit arising out of land but supposing that this definition would show that a simple mortgage debt would generally speaking be regarded as immovable property, still we have got to see whether the meaning is really what is contemplated by the provisions of the Civil Procedure Code relating to the execution of decrees.

3. It seems to us that the provisions of Rule 54, Order XXI, corresponding to Section 274 of the Code of 1882 are not meant to apply to property of the nature of a debt secured by a hypothecation bond. For instance, as pointed out in Karim-un-nissa v. Phul Chund I.L.R. (1896) A. 134 if the property to be attached is a mortgage debt where the mortgagee is not in possession nor is entitled to possession of the mortgaged property, the requirement as to the proclamation of the order at some place in or adjacent to the property and the affixing at a conspicuous part of the property could not be applied. These provisions seem to contemplate that the immoveable property should be in the nature of tangible property. Further the mortgagee not being entitled to possession, his decree-holder would not be entitled to go upon the land for the purpose of proclaiming or affixing the order. Then there is another difficulty in the way of holding that mortgaged debt is to be treated as immoveable property for the purposes of attachment. Rule 54 does not provide for any order prohibiting the mortgagor, that is, the person owing the debt' from paying the debt to the mortgagee whose right is sought to be attached and without such an order the object of attachment might be frustrated. Rule 46, on the other hand provides for such prohibiting order being passed. The fact is, as pointed out in Tarvadi Bolanath v. Bat Kashi I.L.R. (1901) B 305 and other cases, the security must follow the debt, and if the debt is once attached the benefit of the security would accrue to the attaching creditor if his remedy against the property still exists.

4. Much reliance, we may also mention, has been placed on behalf of the appellant on the definition of ' mortgage' as an interest in immoveable property as given in the Transfer of Property Act. But the real question, as we have said, is whether it is immoveable property within the meaning of Rule 54, Civil Procedure Code, and for the reasons we have stated it is difficult to regard it as such. There is some diversity of judicial opinion on the question under discussion, but we are satisfied that the weight of opinion is undoubtedly in favour of the view we have taken. See Debendra Kumar Mandat v. Ruplal Das I.L.R (1886) C. 546 Kasinath Das v. Sadisiv Pat-ndick I.L.R. (1893) C. 805 Taravadi Bholanath v. Bat Kashi I.L.R. (1901) B 305 Karim-un-nissa v. Phul Chand I.L.R. (1893) A. 134 Baijnath Lohea v. Binoyendranath Palit (1901) 6 C.W.N. 5 and Baldev Dhanrup Matvadi v. Ramachandra Balwant Kalkarni I.L.R. (1893) B. 121. As regards this court, opinion seems to have fluctuated. While Turner C.J. in Appasawmi v. Scott I.L.R. (1884) M. 5 was inclined to adopt the view which has the support of the majority of the High Courts, the other two learned Judges favoured a different view. In Sawmi Iyer v. Krishnasawmi I.L.R. (1886) M. 169 the inclination was to support the view taken by the majority of the Judges in Appasawmy v. Scott I.L.R. (1884) M. 5. In Muniappa Naik y. Subramania Iyer I.L.R. (1895) M. 487 the view adopted in Debendra Kumar Mandal v. Rup Lai Das I.L.R (1886) C. 546 and Kasinath Das v. Sadasiv Patnaick is expressly approved, though the learned Judges seem to imply that a sale under Section 268 of the Code of 1882 might be irregular. Achamma v. Basappa (1897) 8 M. L.J. 1 simply follows Muniappa Naik v. Subramanib Iyer I.L.R. (1895) M. 487 There is thus some uncertainty as to the exact view held by the court on the point under discussion. But as the conclusion at which we have unhesitatingly arrived is undoubtedly supported by preponderance of authority of the other High Courts, we do not think it necessary to refer the matter to a Full Bench. The appeal will therefore be dismissed with costs.


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