Venkatasubba Rao, J.
1. This case raises a point of some novelty. The respondent filed a suit to enforce a mortgage. He impleaded as defendants Gowriambal Achi, the present appellant, her son and grandson. I extract the following passage from the judgment in that suit in April 1924:
It appears to me that as a suit to enforce a mortgage the suit must fail. Gowriambal Achi has no title to the property. The properties wore left by will absolutely to Gowriambal's mother. It was recited that on the latter's death Gowriambal was to succeed to any of the properties which her mother had not alienated. Gowriambal's mother is still alive, and Gowriambal may never succeed to any of this property. I do not see how Gowriambal by her deed can create any charge on the property.
2. On this reasoning, Mr. Stodart, the District Judge, passed the following decree:
I give the plaintiff a decree for the sum claimed Rs. 6,500, with simple interest at the contract rate, namely 12 per cent of Rs. 6,166, * * * * This is a simple money decree against defendant 1, Gowriambal alone. The suit as against defendants 2 and 3 is wholly dismissed.
3. We are not now called on to construe the will referred to in the passage above nor is it a part of the record before us. Nor are we at present concerned with the question whether the judgment is right or not; for the plaintiff submitted to it and it became final between the parties.
4. Subsequent to the passing of the decree, Gowriambal Achi's mother died and the plaintiff assumed (whether rightly or wrongly, it is needless to enquire) that she became absolutely entitled to the properties covered by the mortgage. In that view, he applied to execute the money decree passed in his favour by attachment and sale of those properties. The defendant (Gowriambal Achi) opposed the plaintiff's application, urging that it contravened the provisions of Order 34, Rule 14, Civil P.C., and that the plaintiff's remedy was by way of a regular suit. This objection was overruled and the plaintiff was allowed to execute his decree. The order dated 10th November 1926, then made on Gowriambal Achi's petition requesting that the plaintiff's application might be rejected, may be reproduced:
The decree is very clear. It was held that the mortgage was not enforceable, as the mortgagor, i.e., the judgment-debtor had no right to the property mortgaged. Only a simple money decree was passed. In execution of this simple money decree, the properties which were originally mortgaged and to which the judgment-debtor became entitled by inheritance subsequently are attached and are brought to sale. Order 34, Rule 14, has no application. There is no mortgage subsisting and the claim did not arise out of the mortgage. Decree-holder need not file a fresh suit. Petition is dismissed with costs.
5. The plaintiff now conceiving that a higher right accrued to him and that he had been mistaken in applying for attachment, presented a petition to the Court stating that his execution petition was not pressed. Thereupon, the Judge recording that the petition was not pressed, made an order dismissing it. This happened on 15th January 1927.
6. The next step taken by the plaintiff is the one with which we are concerned. He presented execution petition No. 11 of 1927, on which the order under appeal was made. In Col. 7 of that petition, the plaintiff gives the reason for his abandoning his previous execution application:
But the said execution petition did not correctly set out the charge which this decree-holder had obtained over the immovable properties mentioned hereunder after the death of judgment-debtor's (defendant 1's) mother by virtue of Section 43, T.P. Act. So the petition was not continued.
7. He then prays in Col. 10 that the amount due to him under the money decree may 'be realised by the sale of the judgment-debtor's immovable property.' He adds a further prayer, which in truth is the same as the first, in different words:
that the properties hereunder mentioned may be sold in satisfaction of the charge which the decree-holder has obtained over the properties since the judgment-debtor became absolutely entitled.
8. Now, the basis of this application is the right which under Section 43, T.P. Act, the plaintiff conceived he obtained, by reason of the power to perform the contract, subsequently acquired by Gowriambal Achi. The learned Judge held that the execution could be granted in the form prayed for and made an order accordingly. It is this order that is attacked in this appeal.
9. The plaintiff's application was clearly misconceived. In execution of a money decree, the judgment-debtor's property cannot be sold without its being first attached. No doubt, the plaintiff's contention is that the mortgage in his favour can take effect as against the property acquired by the defendant subsequent to the decree. But this does not enable him to bring the property straightway to sale, when the decree he seeks to execute is an ordinary money decree. The order of the lower Court cannot, therefore, be sustained; nor, as I understand Mr. Sitarama Rao, the respondent's counsel, does he seriously contend that it is right.
10. He is, therefore, driven to present his case thus: He says in effect, treat my application as one for attachment but coupled with a prayer under Section 73(1)(b), Civil P.C., I should be disposed to comply with this request if his application was legally competent. The reason for the present course he adopts is this. If the Court makes a bare order of attachment, the respondent thinks, in the circumstances it confers no benefit on him; and it is in that view he abandoned his previous execution application. The fact is, there are other creditors of the defendant who have either attached or threatened to attach these properties. That being so, the plaintiff's right, in the event of a sale taking place, is merely to share the proceeds rateably. The plaintiff, therefore, in order to obviate this result, has had to invoke the aid of Section 73(i)(b), Civil P.C.
11. Clause 1, Section 73, lays down the conditions for rateable distribution. Then follow two provisos:
(a) Where any property is sold subject to a mortgage or charge, the mortgagee or incumbrancer shall not be entitled to share in any surplus arising from such sale;
(b) Where any property liable to be sold in execution of a decree, is subject to mortgage or charge, the Court may, with the consent of the mortgagee or incumbrancer, order that the property be sold free from the mortgage or charge, giving to the mortgagee or incumbrancer the same interest in the proceeds of the sale as he had in the property sold.'
12. The plaintiff puts his case thus. The property he seeks to attach has become under Section 43, T.P. Act, subject to his mortgage. He agrees to its being sold free of that mortgage. In that event, his mortgage right becomes transferred to the sale proceeds which he can then draw out from Court. The argument is ingenious, but totally unsound. In my opinion, to a case like the present, these provisions do not apply at all.
13. It is first contended by Mr. Panchapagesa Sastri for Gowri Achi that these rules have not been enacted as independent or substantive provisions but only as provisos and unless, therefore, the case is one of rateable distribution under the main part of the section, these rules do not apply at all; in other words, when there are no rival decree-holders, a case cannot arise which calls into play the rules enacted in the provisos. I doubt if this contention is correct, though I express no decisive opinion on the point. Supposing there is a single decree-holder who attaches a property, why should a person holding a mortgage upon it not be entitled to the benefit of this proviso? By enacting the rule in the form of a proviso, is it intended to deprive such a person of this right? But, as I have said, I do not propose to pursue this enquiry.
14. The case now arises, however, in a different form. The provisos, of course, apply when there are several decree-holders; this is not disputed. It may be granted that they also apply when there is a single decree-holder and another person who is a mortgagee. I am also prepared to assume that they are applicable when the decree-holder and the mortgagee happen to be the same person, provided the decree debt and the mortgage debt are two distinct and different debts. But in this case whether you refer the debt to the decree or to the mortgage, it is the self same debt. To such a case, the rules in question cannot be reasonably applied. Can the application by the plaintiff be termed in any sense an execution application at all? To execute a decree is to carry that decree into effect for obtaining satisfaction of it. In this case, the plaintiff, under the guise of executing his decree, gets his mortgage satisfied. This is just a pretence of execution, for if along with the mortgage the decree also gets satisfied, the result is but fortuitous and incidental. A case of this kind is of rare occurrence. The case that most nearly resembles this, is that which comes within the mischief against which Order 34, Rule 14 is directed. A mortgages his property to B to secure repayment of a sum of money. B sues A to recover that sum and obtains a personal decree against A. B then applies for attachment and sale of A's interest in the mortgaged property in execution of the money decree and the sale must be refused under this rule.
15. The above mentioned case is of the usual kind; but owing to the peculiar facts before us, as I shall show presently, that rule does not here operate as a bar and the sale can be allowed. But when the two debts are identical, in other words, when there is a single debt, does it make sense to say, that the decree-holder can sell the property either subject to his mortgage or free of it? Let us suppose that he sells the property subject to his mortgage and that it fetches, say a Rs. 1,000 at the sale. Can he touch a rupee of this money? Obviously not, for the decree debt springs from the mortgage and the sale being admittedly subject to it, he has no right to proceed against any part of the money. Let us next suppose that he sells the property free of his mortgage and that it realises a sum which exceeds the mortgage amount. Has he any right to any part of the excess sum? The answer is again in the negative. In short, the decree-holder diverts the execution proceedings from their true object and turns them to a wrong end. This, the Courts will not permit, and I am therefore clearly of the opinion that the second proviso of Section 73 does not apply.
16. The question then remains: can the plaintiff merely attach the property and bring it to sale? As I have already pointed out, he made a previous application to that effect and it was granted. That is a decision between the parties, and is binding upon them. Apart from that, Order 34, Rule 14, does not stand in the plaintiff's way. In the suit, it has been decided that there is no mortgage at all and it therefore follows that the decree is not:
for the payment of money in satisfaction of a claim arising under the mortgage.
17. This decision, right or wrong, binds the parties and for the present purpose it must be conclusively taken that the claim is not one that arises under the mortgage. This point is conceded by Mr. Panchapagesa Sastri, and requires no further discussion. But the plaintiff, as I have already shown, is not satisfied with a bare order that he can attach and sell the property. But if he is so advised, he may apply to the lower Court for such an order and as the application cannot be opposed (as Mr. Pancha pagesa Sastri concedes), that Court may grant it and direct attachment and sale in the usual course.
18. In the result neither of the applications of the plaintiff (the one made to the lower Court or the one made to us), is competent and the appeal is allowed, but, in the circumstances, we make no order as to costs.
19. Before closing, I may add that in the view I have taken it is unnecessary to discuss whether Section 43, T.P. Act, applies to the facts or not. That is a point which must be left to be considered in any regular suit which the plaintiff may choose to file.
Madhavan Nair, J.
20. I agree.