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Upendra Mohan Pal Choudhury Vs. Nalini Mohan Roy Choudhury and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Reported inAIR1937Cal199
AppellantUpendra Mohan Pal Choudhury
RespondentNalini Mohan Roy Choudhury and ors.
Cases ReferredMacdonald v. Tacquah Gold Mines Co.
Excerpt:
- .....by attachment and sale of the share of respondent 1, who is one of the judgment-debtors in the mortgage money due to him under a registered mortgage bond for rs. 2,31,500 executed by raja gopal lal roy bahadur of tajhat in favour of the said judgment-debtor and his brothers on 14th july 1931. on 18th april 1935 the learned judge issued writ of attachment under order 21, rule 46, civil p.c. thereupon respondent 1 raised objection to the attachment on the ground that the share of the debt was not liable to be attached and sold under law. the learned subordinate judge gave effect to this objection and ordered the attachment to be withdrawn and subsequently struck off the execution cases. hence these two appeals by the decree-holder.2. the only point for determination in these two.....
Judgment:

1. The appellant in these two appeals obtained two decrees for money from the Original Side of this Court on 24th August 1933. He got these two decrees transferred for execution to the Court of the Subordinate Judge, Rangpur, and applied for execution by attachment and sale of the share of respondent 1, who is one of the judgment-debtors in the mortgage money due to him under a registered mortgage bond for Rs. 2,31,500 executed by Raja Gopal Lal Roy Bahadur of Tajhat in favour of the said judgment-debtor and his brothers on 14th July 1931. On 18th April 1935 the learned Judge issued writ of attachment under Order 21, Rule 46, Civil P.C. Thereupon respondent 1 raised objection to the attachment on the ground that the share of the debt was not liable to be attached and sold under law. The learned Subordinate Judge gave effect to this objection and ordered the attachment to be withdrawn and subsequently struck off the execution cases. Hence these two appeals by the decree-holder.

2. The only point for determination in these two appeals is whether the learned Judge was right in withdrawing the attachment and striking off the execution cases. Under Section 60, Civil P.C., debts belonging to the judgment-debtor and all movable or immovable properties belonging to him over which he has a disposing power which he may exercise for his own benefit are liable to attachment and sale in execution of decrees. It is not disputed by the learned advocate appearing on behalf of respondent 1 that the share of the mortgage debt in question does not come under the proviso to Section 60. His contention however is that the word 'debts' in Section 60 means entire debts and not share of debts. In other words, he asks us to read the expression 'belonging to the judgment-debtor' as 'belonging to the judgment-debtor alone.' We are unable to accept this contention inasmuch as such a reading would make the shares of movable or immovable properties exempt from attachment and sale as it is not disputed that such shares are attachable and saleable. It is next contended by the learned advocate for the respondent that the share of a debt cannot be attached under Order 21, Rule 46, of the Code. His argument is that the word 'debt' in Clause (1)(a) and (i) in the rule must have the same meaning as the word 'debt' in Clause 3 of the rule and as the words 'his debt' in Clause 3 mean the debt due to the judgment-debtor alone and not to judgment-debtor and other persons jointly, the word 'debt' in Clause 1 must also mean a debt due to the judgment-debtor alone. In support of his contention he relied upon the decision of the Court of appeal in Macdonald v. Tacquah Gold Mines Co. (1884) 13 Q B D 535. That case is. an authority for the proposition that the share of a debt cannot be the subject matter of a garnishee proceeding under the Rules of the Supreme Court, 1875. By Rule 46 of the Civil P. C, 1908, as it now stands after its amendment in 1935, see Rr. 46-A to 46-H, a garnishee order cannot be made even when a mortgage debt is due to the judgment-debtor alone if the garnishee denies the debt or refuses to pay the amount of debt into Court.

3. It is next argued by the learned advocate for the respondent that if the share of a debt is not attachable under Rule 46, it is also not saleable, because the very fact that the legislature has not prescribed any mode of attachment of a share of a debt is a sufficient indication that the share of a debt is not saleable as there cannot be a sale without attachment. By Section 51(b) of the Code subject to conditions and limitations prescribed by rules the Court may on the application of the decree-holder, order execution of the decree by attachment and sale or by sale without attachment of any property. The section, therefore, contemplates sale without attachment. Even if a share of a debt cannot be attached under Order 21, Rule 46 or under any other rule prescribed, a prohibitory order similar to one under Rule 46 can be made under the inherent powers of the Court where the Court finds it necessary for the ends of justice. It appears that a large amount of money is due to respondent 1 jointly with his brothers from the Raja of Tajhat. Respondent 1 is entitled under the law to assign his share of the debt for his own benefit and on such assignment the assignee would stand in the position of a co-mortgagee with his brothers. A co-mortgagee is entitled to realize the entire mortgage debt from the mortgagor jointly with the other co-mortgagees. If the mortgagor does not pay the money and if the other co-mortgagees refuse to join the assignee in a suit to enforce a mortgage, the assignee alone can sue for recovery of the entire mortgage money in the presence of the other co-mortgagees for the benefit of all of them. Respondent 1, therefore, has a disposing power in his share of the debt which he may exercise for his own benefit.

4. It is however contended by the learned advocate for the respondent that the prohibitory order under Rule 46 was rightly withdrawn by the learned Subordinate Judge, inasmuch it would interfere with the rights of the brothers of respondent 1 to realize the mortgage debt from the mortgagor and with the rights of the garnishee to get a valid discharge of the mortgage debt by the payment of the mortgage money to all the three mortgagees. So far as the rights of the brothers are concerned, the prohibitory order does not prevent them from enforcing their rights under the mortgage according to law. If the mortgagor wants to pay off the entire mortgage money and get a valid discharge he can deposit the amount in Court under Section 83, T.P. Act. On the other hand if the prohibitory order is withdrawn and respondent 1 and his brother realize the mortgage money it would be very difficult for the decree-holder to realize from respondent 1 his share of the money. For the ends of justice, therefore, the prohibitory order served on respondent 1 and the mortgagor should be maintained. No precedent was cited before us in support of the view that the respondent 1's share of the mortgage debt cannot be old by the executing Court in execution of the decrees and the Sale proceeds cannot be appropriated by the appellant towards the satisfaction of his decrees. We are informed that the mortgagor's equity of redemption has now vested in the Court of Wards. There was a discussion at the Bar as to whether it would be to the interest of all the parties concerned, to have a receiver appointed in respect of respondent 1's share of the mortgage debt instead of the sale of that share.

5. As the learned advocates appearing for parties in this case could not come to any definite agreement in this matter and as there was no prayer for the appointment of a receiver in the petitions for execution, we do not express any opinion in this connexion and leave the question open between the parties to be agitated in the Court below either in these execution proceedings or in any other subsequent execution proceedings. The result therefore is that these appeals are allowed; the order of the learned Subordinate Judge in these two execution cases withdrawing the attachment and striking off the execution cases are not set aside. He is directed to determine the extent of respondent 1's share in the mortgage debt after giving the decree-holder an opportunity of examining respondent 1 or of any other person under Order 21, Rule 41 of the Code and to proceed with the execution cases according to law in the light of the observations made above. There will be no order for costs in these two appeals. Let the record in this case be sent down as early as possible.


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