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U. NoordIn Kutti Vs. N. Kunhi Bava - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in16Ind.Cas.438
AppellantU. NoordIn Kutti
RespondentN. Kunhi Bava
Cases ReferredNataraja Iyer v. South India Bank Tennevelley
Excerpt:
civil procedure code (act xiv of 1882), sections 268, 274 - attachment of mortgage-debt under section 268--sale of the debt--right of purchaser to enforce the security by sale. - .....appeal, is that, as the debt was attached in the manner laid down by section 268 of the code of civil procedure (old) and not in the manner provided for the attachment of immoveable property, the plaintiff is not entitled to enforce the sale of the hypothecated property. this point was definitely decided by this court in muniappa naick v. subramania ayyan 5 m.l.j. 60 where it was held that, assuming that the proper mode of attachment where it is intended to make the security for the debt available for the judgment-debtor, is to attach it as immoveable property, the failure to conform to the provisions of section 274, civil procedure code, would only be an irregularity and that the purchaser would obtain a valid right to enforce the security notwithstanding the absence of attachment.....
Judgment:

1. The plaintiff sues for the recovery of the amount due on a hypothecation bond executed by the 1st defendant in favour of one Kunhi Pakki Mosaliar. In execution of a decree against Kunhi Pakki, the debt due on this bond was brought to sale and purchased by the plaintiff. The only contention, with which it is necessary to deal in second appeal, is that, as the debt was attached in the manner laid down by Section 268 of the Code of Civil Procedure (old) and not in the manner provided for the attachment of immoveable property, the plaintiff is not entitled to enforce the sale of the hypothecated property. This point was definitely decided by this Court in Muniappa Naick v. Subramania Ayyan 5 M.L.J. 60 where it was held that, assuming that the proper mode of attachment where it is intended to make the security for the debt available for the judgment-debtor, is to attach it as immoveable property, the failure to conform to the provisions of Section 274, Civil Procedure Code, would only be an irregularity and that the purchaser would obtain a valid right to enforce the security notwithstanding the absence of attachment according to Section 274, Civil Procedure Code. The Privy Council held the same view in Rai Balkrishna v. Musammat Masuma Bibi 9 I.A. 182 their Lordships observe that the defect in the attachment is cured by the sale certificate. It is unnecessary to consider the question, whether, in proceedings taken to set aside a sale on the ground of irregularity, the attachment of a debt without conforming to the requirements of Section 274, Civil Procedure Code, would be regarded as proper. In the latest decision of this Court, Nataraja Iyer v. South India Bank Tennevelley 22 M.L.J. 105 : 13 Ind. Cas. 91 : (1911) 2 M.W.N. 590 the view taken was that the security must be regarded as accessory to the debt and that attachment under Section 238, Civil Procedure Code, would be enough. The authorities on the question immediately before us have been collected on page 70 of Dr. Rash Behari Ghose's Treatise on Mortgages, 4th Edition. We do not consider it necessary to make a detailed reference to them. The second appeal is dismissed with costs.


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