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Gopal Chundra Mittra and ors. Vs. Srinath Dutt - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal511
AppellantGopal Chundra Mittra and ors.
RespondentSrinath Dutt
Excerpt:
sale in execution of decree - debt secured by mortgage of immoveable property--civil procedure code (x of 1877), section 266. - .....to be decided in this appeal is whether a debt secured by mortgage of immoveable property has been rightly sold in execution of decree, under the provisions of the civil procedure code applicable to moveable property.2. the learned judge below has regarded it merely as a debt, and has held that it was rightly sold as moveable property. we feel some difficulty in adopting this view. a mortgage is not merely a debt; it represents a substantial interest in the mortgaged property, viz., the right of selling it, under certain conditions, in realization of the debt. it is obvious that if the debt alone, apart from the security, is sold in execution, the full value of the mortgage will not be realized. the case does not appear to be expressly provided for by the code. we think that in such.....
Judgment:

Cunningham, J.

1. The question to be decided in this appeal is whether a debt secured by mortgage of immoveable property has been rightly sold in execution of decree, under the provisions of the Civil Procedure Code applicable to moveable property.

2. The learned Judge below has regarded it merely as a debt, and has held that it was rightly sold as moveable property. We feel some difficulty in adopting this view. A mortgage is not merely a debt; it represents a substantial interest in the mortgaged property, viz., the right of selling it, under certain conditions, in realization of the debt. It is obvious that if the debt alone, apart from the security, is sold in execution, the full value of the mortgage will not be realized. The case does not appear to be expressly provided for by the Code. We think that in such cases there should be an attachment under Section 274 as well as under Section 268. In the present case, as the debt alone was sold, a material irregularity producing substantial injury to the judgment-debtor appears to have occurred, and the sale must be set aside under Section 311, and the purchase money refunded under Section 315.

3. The appeal must be decreed with costs.


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