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 field by the lower Court as movable 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 immovable 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. In seems to us that the provisions of Rule 54, Order XXI, corresponding to Section 274 of the Code of 1832, are not meant to apply to property of the nature of a debt secured by a hypothecation bond. Ror instance, as pointed out in Karimunnissa v. Phul Chand I.L.R. (1893) All. 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 requirements is 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 immovable 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 mortgage debt is to be treated as immovable 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 prohibitory order being passed. The fact is, as pointed out in Tarvadi Bholanath v. Bai Kashi I.L.R. (1902) Bom. 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 immovable property as given in the Transfer of Property Act. But the real question, as we have said, is whether it is immovable 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.
5. 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 Mandel v. Rup Lall Dass I.L.R. (1886) Calc. 546, Kasinath Das v. Sadasiv Patnaik I.L.R. (1893) Calc. 805, Tarvadi Bholanath v. Bai Kashi I.L.R. (1902) Bom. 305, Karimun-Nissa v. Phul Chand I.L.R. (1893) All. 134, Baij Nath Lohea v. Binoyendra Nath Palit (1901) 6 C.W.N., 5 and Baldev Dhanrup v. Ramchandra Balvant I.L.R. (1895) Bom. 121. As regards this Court, opinion seems to have fluctuated. While Turner, C.J., in Appasami v. Scott I.L.R. (1886) Mad. 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 Sami v. Krishnasami I.L.R. (1887) Mad. 169, the inclination was to support the view taken by the majority of the Judges, in Appasami v. Scott I.L.R. (1886) Mad. 5. In Muniappa Naik v. Subramania Ayyan I.L.R. (1895) Mad. 437, the view adopted in Debendra Kumar Mandel v. Rup Lall Dass I.L.R. (1886) Calc. 546, and Kasinath Das v. Sadasiv Patnaih I.L.R. (1893) Calc. 805, 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 : (1898)8MLJ1 simply follows Muniyappa Naik v. Subramania Ayyan I.L.R. (1895) Mad. 437. There is thus some uncertainty as to the exact view held by this Court on the point under discussion. But as the conelusion 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.