1. In this case the decree-holder-petitioner attached certain property belonging to the judgment-debtor. The opposite party laid a claim to the property attached on the ground that ho was a usufructuary mortgagee in possession and prayed that the attachment might be withdrawn. There was an investigation and Court below allowed the claim and passed the following order regarding attachment:
As a usufructuary mortgagee in possession, the claimant is entitled to an order of removal of attachment. The claim is allowed. The attached property be released from attachment.
2. This Rule has been obtained to have this order set aside.
3. It is urged by the petitioner that the order is wrong in law. He contends that what he attached was the interest of the judgment-debtor in the property. That interest has now been found to be only the equity of redemption and his attachment ought to be confined to that interest. The whole attachment ought not to have been withdrawn but that the equity of redemption should have been withdrawn but that the equity of redemption should have been sold in execution of the decree. In my opinion, this contention is not correct; under Order 21, Rule 58 a claimant comes before the Court and alleges that the property is not liable to be attached. The property in this case was that entire interest of the judgment-debtor in the property attached and the usufructuary mortgagee under Section 58 came to Court and asked that that interest could not be attached as he was in possession of it. The Court had to investigate that claim and come to a finding under Rule 60 as to whether the claimant was in possession of the attached property. If the claimant was in possession of the attached property, the Court was bound to release the attachment. It, therefore, follows that in this case the Court was right in directing the release of the attachment. This view was adopted so long ago as 1873 in the case of Kassirav v. Vithaldas 10 B.H.C.R. 100. This was followed by Farran, C.J., in the case of Parashram Harlal v. Govind Ganesh (1897) 21 Bom. 226. There the learned Chief Justice observed, as follows:
The attachment of such property is effected under Section 274 of the Code (O. 21, Rule 54) by an order prohibiting the judgment-debtor from transferring or charging the attached property in any way and all other persons from receiving the same from him by purchase, gift or otherwise, such order being proclaimed and notified as there directed. The property to be attached should, however, be not the mortgaged property itself, but the equity of redemption of the mortgagor or as it is called in Section 60, T.P.A., the right of the mortgagor to redeem the mortgaged premises. This is not vested in the mortgagee nor does he hold it in trust for the mortgagor. When the right to redeem only is attached, the mortgagee cannot come in and ask to have the attachment raised under Section 280 (Order 21, Rule 80). It is otherwise when the property itself is attached as it was in the case of Kassirav Sahib Holkar v. Vithaldas Mangalji 10 B.H.C.R. 100 referred to above.
4. A similar view was expressed in the case of Ganesh Moreshwar v. Purshotam Balkrishna Rodi (1909) 33 Bom. 311. In that case the question of withdrawal of attachment was not raised and the property was sold and purchased by the attaching-creditor. But Scott, C.J., observed, with regard to the illegality of the order of the Court below, that the attached property should have been released under Section 280 (Order 21, Rule 60) and the judgment creditor should have been left to the suit allowed by Section 283. The order passed by the Court below was irregular as Section 282 only applies to cases of mortgages or lieus created in favour of a person not in possession. This view is further strengthened by a reference to Order 21, Rule 62, that being a case of simple mortgage where the mortgaged property is not in possession of the mortgagee. A special provision is made which enables the Court to sell the attached property subject to the mortgage or charge. This leads to the inference that in the case in which the mortgaged property has passed from the possession of the judgment-debtor to that of the mortgagee the Court has no alternative but to release the property from attachment. The question, therefore, that is raised in this rule should be answered in the negative and the petitioner is not entitled to succeed. But we should adopt the course that was followed in the case of Parashram Harlal v. Govind Ganesh (1897) 21 Bom. 226, as it is the course which is commendable in the circumstances of this case also as Dr. Bysuor contends that the intention of the decree-holder was to attach the right, title and interest of the judgment-debtor in the property whatever it might be. We may, therefore, be left to infer that the intention of the decree-holder was not to attach the property but the equity of redemption of the judgment-debtor therein, though that intention has not been actually expressed.
5. The order, therefore, that we propose to pass in this Rule is that the Rule should be made absolute, the order removing the attachment of the property is set aside and we direct that the attachment will continue upon the equity of redemption of the judgment-debtor. As the litigation has proceeded so far on account of the conduct of the petitioner he must pay the costs of the opposite party both here and in the Court below. We assess the hearing fee in this Court at 2 gold mohurs.
6. I am of the same opinion. I only desire to add that the course which we propose to adopt is in accordance with common sense and, in my opinion, also in accordance with the power vested in the Court under Order 21, Rule 60 and also with the decision of the Bombay High Court in the case of Parashram Harlal v. Govind Ganesh (1897) 21 Bom. 226.