1. This rule arises out of a proceeding taken under Order 21, Rule 58 as well as Order 21, Rule 62, Civil P.C. It appears that the petitioner brought a suit for money against two persons Atal Behari Dalai and Gour Charan Dalai who are opposite parties 2 and 3 in the t rule in the Court of the Munsiff, First Court, Basirhat. That suit was ultimately decreed by the said Court. The I decree was put into execution in the same Court and certain properties of the judgment-debtors were attached. On 15th December 1928 opposite party 1, Benode Behari Bandyopadhaya, made an application to the executing Court in which he prayed that lot 1 be released from attachment and lots 2 and 3 be sold subject to a mortgage in his favour under Order 21, Rule 62, Civil P.C. The claim with regard to lot's was allowed by the Munsiff and with regard to lots 2 and 3 the Munsiff made an order to the effect that the said lots be sold with notice of the mortgage alleged to have been executed in favour of Babu Benode Behari Bandhopadhya, that is, opposite party 1.
2. Against this decision of the Munsiff, the present rule was obtained and the terms of the rule are as follows:
Let the record be sent for and a rule issue calling on the opposite party to show cause why the order of the Munsifi releasing half share of the property described as lot 1 and passing the order with reference to lots 2 and 3 directing such lots to be sold subject to the mortgage of the opposite party should not be set aside or such other or further order made as to this Court may seem fit and proper.
3. A copy of the petition was sent to the Munsiff in order that he might make certain observations with reference to para 6 of the petition. That paragraph runs as follows:
That the said two deeds were alleged to have been executed by the two brothers Atal Behari Dalai and Gour Charan Dalai the judgment-debtors in the original suit. That the notes on both these documents by the Sub-Registrar showed that the execution was admitted by one of the executants only, namely, Atal Behari Dalai and that the other brother, namely, Gour Charan Dalai never appeared nor admitted execution before the Sub-Registrar. That it was brought to the notice of the learned Munsifi by Babu Radhica Prosad Chakravarty, the lawyer of your petitioner both at the time of the hearing and at the time of the argument of the ease. That the letter written by a Babu Radhica Prosad Chakravarty to Mr. Anil Chandra Roy Chowdhury, advocate, in answer to an enquiry made by the latter sent through me is annexed herewith and marked Ex. A.
4. The Munsiff in his explanation states that at this distance of time he is unable to say that the facts referred to in para. 6 were brought to his notice. It appears now on an examination of the deed of sale which is referred to in para. 6 that registration of the said deed was refused. The claimant made his claim to the property in suit on the basis of this deed of sale and it appears now clear that there was no deed of sale such as the law requires in favour of the opposite party. Consequently, it cannot be said that the opposite party 1 was in possession of this property on his own account. If the deed of sale has not been established or proved, the property must be said to lie where it originally lay, namely, the judgment-debtor. The rule, however, is limited to half share of the property described in lot 1. Therefore, the Munsifi's order with reference to lot 1 in so far as it affects half of the said lot must be set aside and the claimant's claim with regard to lot 1 will be held good only with regard to the other half. To this extent the Munsiff's decision is varied with reference to lot 1.
5. With reference to lots 2 and 3 it seems to me that the Munsiff has misconceived the scope of an enquiry under Order 21 Rule 62, Civil P.C. He finds on the evidence which is established that the properties were subject to a mortgage and at the same time he gives the direction that these properties be sold with notice of the said mortgage. That he could not do on an enquiry under Order 21, Rule 62. That is a thing which is foreign to such a matter. If the Munsiff found on the evidence that the lots 2 and 3 were subject to one or several mortgages, he should have proceeded to make an order in terms of the said rule, namely, to continue the attachment subject to such mortgage on mortgages. Instead of doing that he made an order which is really an order which could properly be made in a proceeding under Order 21, Rule 66, Civil P.C., but the present proceedings are not of that kind.
6. The result is that the order of the Munsiff in so far as it affects lots 2 and 3 should be set aside and case sent back to him in order that he may consider as to whether on the evidence the opposite party 1 has established that the property in question is subject to one or several mortgages. In arriving at a conclusion on this question the Munsifi must take into account the objection raised by the petitioner as to the validity of the mortgage or mortgages set up by reason of non-registration of the said deeds. If he finds that it has been established that the property is subject to mortgage then ha will pass an order as is contemplated under Order 21, Rule 62, Civil P.C., namely, to continue the attachment subject to mortgage. If, on the other hand, he finds that the mortgage or mortgages have not been established then he will disallow the claim of the opposite party.
7. Having regard to the divided success of each party, there will be no order as to costs in this Rule.