1. The question involved in this appeal is whether the plaintiff is entitled to claim that he has asubsisting usufructuary mortgage on the properties referred to in the plaint: or whether the 2nd defendant can claim that he has acquired not only the equity of redemption but also the mortgagee's interest. The decision of this question depends upon whether the mortgagee's interest in the property was validly attached and sold in execution or whether the attachment was invalid. After the alleged attachment of the mortgagee's interest upon which the defendant relies the plaintiff paid off the mortgage amount and purported to redeem the property. The plaintiff claims that the redemption was valid as the attachment was invalid; and the defendant claims that the alleged redemption was void under Section 64 of the new Code of Civil Procedure, as the property had been attached prior to the alleged redemption.
2. The learned pleader for the defendant relied up on the terms of Section 64 of the new Code of Civil Procedure and invited us to hold that inasmuch as the section does not state that the attachment referred to therein must be a valid attachment it is immaterial whether or not it is valid; that the payments therein referred to must be held to be void as soon as an attachment is purported to be made irrespective of the validity of the attachment. We are unable to accede to this argument as stated. It is unnecessary in the present case to consider whether the section cannot operate if there is any irregularity whatsoever in the attachment. It may be that some irregularities may not vitiate the attachment for the purposes of Section 64 of the new Code of Civil Procedure. But in the present case the alleged cause of invalidity cannot be described as a mere irregularity as between the parties now before us. The attachment must be held to be either entirely void or entirely valid.
3. The contention of the plaintiff is that the interest of the usufructuary mortgagee was attached as though it was immoveable property under Section 274 of the old Code of Civil Procedure 1882 (Order 21. Rule 54 of the present Code); and that it ought really to have been attached as a debt under Section 268 of the old Code of Civil Procedure (Order 21, Rule 46 of the present Code). The substantial difference between the two modes of attachment (so far as at present material) is that under Section 268 the mortgagor would have received a written order of the Court prohibiting him from making the payment to the mortgagee; and under Section 274 he received no such order, nor any notice of the attachment. The mortgagor therefore can reasonably claim that the payment which he has made in ignorance of the attachment cannot be held to be void if he was entitled to proceed on the basis that there was no attachment of the mortgagee's interest because if there had been an attachment in the form in which the law entitled him to expect it to be made he would have been prohibited from making the payment and he was not so prohibited.
4. The question may therefore be considered in the following form: Is the mortgagor entitled to receive notice of any attachment of his usufructuary mortgagee's interest? And in the absence of such notice is he entitled to redeem the mortgage by paying off the amount due or will any payments he makes be invalid as against an attaching creditor of the mortgagee.
5. It is admitted that in the case of a simple mortgagee (as distinguished from a usufructuary mortgagee) the proper mode of attachment is that applicable to a debt (Section 268 of the old Code of Civil Procedure now Order 21, Rule 46 of the new Code of Civil Procedure) but it is urged that the case is different when the mortgage is usufructuary. Some support is given to this argument by the decision in Manilal Ranchod v. Motibhai Hemabhai I.L.R. (1911) B. 288 on the other hand Chullile Peetikayal Nammad v. Othenam Nambiar (1911) 27 M.L.J. 239 (to which one of us was a party is relied upon by the plaintiff. In our opinion there is no conflict in the ratio decidendi of each of these cases: Manilal Banchod v. Motibhai Hemabhai I.L.R. (1911) B. 288 proceeded on the assumption that on the true construction of the deed then before the Court there was no debt which the mortgagee was entitled to recover at the time of the attachment; and consequently a person who claimed to have acquired from the mortgagee a right which the mortgagee himself did not possess, could not claim to be put in possession of property as collateral security for a debt which did not exist. When in accordance with the document the mortgagee cannot claim to recover any debt from the mortgagor nor the mortgagor claim to make any payment to the mortgagee it would seem that the attachment of the rights arising under such a document cannot take the form contained in Order 21, Rule 46 of the Code of Civil Procedure (Section 26S of the old Code of Civil Procedure); for that form consists of prohibitions from making and receiving payments; it would be meaningless to prohibit persons from making and receiving payments when their relationship is such that no payments are contemplated. On the other hand the decision Chullile Peetikayil Nammad v. Othenam Nambiar (1915) 27 M.L.J. 239 proceeds on the basis that when there is a debt payable by the mortgagor the fact that the mortgagee is in possession of the land does not the less make it a debt, nor is the mode of attachment of such debt affected the collateral security for such debt, even though that security may take the form of possession of the property.
6. We have therefore to determine in this case first whether there was any debt which ought to have been attached as such; and secondly whether in failure of any such attachment, the payment on which the plaintiff relies can be considered to have transferred the mortgagee's rights to him.
7. The mortgage in question was no doubt usufructuary. It however provided for redemption on 12-4-1898; and the mortgagor promised to the mortgagee 'we shall pay to you the principal of the mortgage amount and we shall redeem the said lands clear of Sirkar Teerwai. Farther after discharging (the loan) as above, we shall get back the mortgage deeds and other documents 8 in number which we have obtained and given to you. Should we fail to pay you the principal of the usufructuary mortgage amount on the said due date, we shall, on your demanding it of us within the 1st of the month of Chittrai in any year pay you the said amount and redeem the mortgage.' At the time of the attachment therefore, viz., on 14-8-1904, the mortgagor had already become bound to repay the mortgage debt, and had in any case a right to pay it and to demand possession of the mortgaged property. Hence it is clear that there was such a right to receive payment if it was offered as could have been attached and if the attached creditor desired that, the payment should be made to him he should have obtained an order of the Court prohibiting the mortgagor from making the payment to the mortgagee; Section 268 of the old Code of Civil Procedure.
8. Secondly the learned pleader for the appellant forcibly pointed out in argument if the attachment be taken to be that of the mortgagee's collateral security by way of being in possession of immoveable property till his debt is paid, then assuming that the attachment was valid the attaching creditor acquired merely that precarious interest in immoveable property by attaching under Section 274 of the old Code of Civil Procedure; and the defendant cannot claim to have any right to be in possession of the property (for that is all the right that he can claim) as security for a debt which has now been paid off.
9. It was contended for the defendant that there could not be said to be a debt capable of being attached, as the mortgagee's personal rights had become barred, at the date of the attachment. But assuming that at the date of the attachment the mortgagee could not have obtained any relief on his mortgage deed except possession of the property, it does not affect the mortgagor's right to pay off the mortgagee and to obtain possession of the property nor the corresponding right of the mortgagee to receive payment prior to giving up possession. These reciprocal rights were not barred by limitation and the attachment could not affect them. The appeal will therefore be allowed. The suit will be remanded to the Court of First Instance for disposal on the other issues. Costs will abide the result.