1. In disposing of this Rule, it is necessary to set out the following facts. On the 28th August 1909, the opposite party obtained a decree in the Small Cause Court for Rs. 1,204 On the 10th April 1910, the present petitioner brought a suit to recover a sum of Rs. 8,696 on an equitable mortgage effected in his favour by delivery of title deeds of five properties hypothecated as security for three loans made on bonds executed in 1907 by Kailash Chandra Das, the same defendant against whom the opposite party had previously obtained the Small Cause Court decree. On the 18th April 1910, the opposite party, in execution of the Small Cause Court decree, attached two of the properties covered by the petitioner's equitable mortgage. On the 18th May 1910, the petitioner obtained a decree for the full amount claimed on his mortgage against the defendant Kailash Chandra Das and the usual order nisi was passed in his favour. On the 14th November 1910, the opposite party brought to sale the two of the mortgaged properties which they had attached in April 1910 and themselves purchased them. On the 2nd February 1911, the mortgage decree was made absolute and on the 9th March 1911, proclamation for sale of the five properties covered by the mortgage was issued. On the 1st of April 1911, the opposite party put in a petition of claim under Order XXI, Rule 58 of the Code of Civil Procedure, in respect of two of the mortgaged properties, which he had purchased at the sale on the 14th November 1910. This claim was allowed by an order passed by the Subordinate Judge on the 8th April 1911. Against this order of the Subordinate Judge, the present petitioner preferred an appeal and also made an application to this Court under Section 115 of the Code of Civil Procedure.
2. A preliminary objection has been taken that no appeal lies against the order and that objection has not been contested by the petitioner. The appeal, therefore, must be dismissed as incompetent. We direct that each party do bear his own costs of the appeal.
3. In support of the application under Section 115, it has been argued, on behalf of the petitioner, that the learned Subordinate Judge exercised a jurisdiction with which he was not vested by law or acted in the exercise of his jurisdiction illegally or with material irregularity by accepting and passing order which he did on the application made under Order XXI, Rule 58, Code of Civil Procedure. It is contended that no such application could be made under the law in respect of properties ordered to be sold in execution of a mortgage decree. In the case of such properties, there is, in fact, no order for attachment and, therefore, the provisions of the rule cannot be taken to apply. This point has in fact been before this Court in the case of Deefholts v. Peters 14 C. 631. It was then held that the proceedings by way of claim under Section 278 of the old Code of Civil Procedure, corresponding to Order XXI, Rule 58 of the present Code, are applicable only to cases of money decrees where properties have been attached and not to cases where properties have been directed to be sold under mortgage decrees. We see no reason to differ from the view taken by this Court in that case; and we think that this concludes the present Rule. We hold that the Rule must be made absolute and the order of the Subordinate Judge, dated the 8th of April 1911, must be set aside on the ground that under the law he had no jurisdiction to entertain the application or to pass the order which he has passed on it. The petitioner is entitled to his costs. We assess the hearing fee at two gold mohurs.