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Birendra Nath Mitra Vs. Uma Charan Banerjee - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in64Ind.Cas.388
AppellantBirendra Nath Mitra
RespondentUma Charan Banerjee
Cases ReferredBaijnath Lohea v. Binoyendra Nath
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 90 - decree for possession of immoveable property not immoveable property--sale of such decree--application to set aside sale not maintainable. - .....referred to certain eases where the question whether the procedure laid down for attachment and sale of immoveable property is applicable to a mortgage decree was considered. in the case of drinath dutt v. gopal chundra mittra 9 c. 511 : 12 c.l.r. 445 : 4 ind. dec. (n.s.) 989 it was held that a debt secured by mortgage of immoveable property cannot be sold in execution of a decree under the provisions of the civil procedure code applicable to moveable property. a different view, however, was taken in the case of debendra kumar mandel v. rup lal dass 12 c. 546 : 6 ind. dec. (n.s.) 371, where the learned judges, field and macpherson, jj., observed: 'we think that it is impossible to say that a debt seaured by a mortgage by a lien upon immoveable property, more especially when the.....
Judgment:

1. This Rule arises out of an application to set aside a sale of a decree for Khas possession of immoveable property, under Order XXI, Rule 90, Civil Procedure Code. The Courts below have held that Order XXI, Rule 90, does not apply to such an application, in other words, that a decree for possession of a land is not immoveable property within the meaning of the rule.

2. Order XXI, Rule 53, Clause (i), lays down the procedure to be observed where the property to be attached is a decree either for the payment of money or for sale in enforcement of a mortgage or charge, while Clause (4) lays down the procedure where the property to be attached in execution of a decree is a decree other than a decree of the nature referred to in Sub-rule (1). Rule 54 describes the manner in which the attachment of immoveable property is to be effected and Sub-section (2) states: 'The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode and a copy of the order shall be affixed on a conspicuous part of the property.' Rule 67 says: 'Every proclamation shall be made and published, as nearly as may be, in the manner prescribed by Rule 54, Sub-rule (2).' The procedure laid down, for the attachment or proclamation of sale in respect of an immoveable property cannot, therefore, be applied to a decree, whatever might be its nature. Then there are certain other rules prescribed in connection with sales of immoveable property which also cannot apply to a sale of a decree.

3. We have been referred to certain eases where the question whether the procedure laid down for attachment and sale of immoveable property is applicable to a mortgage decree was considered. In the case of drinath Dutt v. Gopal Chundra Mittra 9 C. 511 : 12 C.L.R. 445 : 4 Ind. Dec. (N.S.) 989 it was held that a debt secured by mortgage of immoveable property cannot be sold in execution of a decree under the provisions of the Civil Procedure Code applicable to moveable property. A different view, however, was taken in the case of Debendra Kumar Mandel v. Rup Lal Dass 12 C. 546 : 6 Ind. Dec. (N.S.) 371, where the learned Judges, Field and Macpherson, JJ., observed: 'We think that it is impossible to say that a debt seaured by a mortgage by a lien upon immoveable property, more especially when the mortgagee is not in possession, can be regarded as immoveable property within the meaning of Section 274.' A similar view appears to have been taken in the case of Kasinath Das v. Sadasiv Patnaik 20 C. 805 : 10 Ind. Dec. (N.S.) 542, where it was held that an attachment under Section 274 is not necessary to make the sale of a mortgage bond carry the lien as well as the debt.

4. It has been held that a mortgage debt is immoveable property both for the purposes of Section 54 of the Transfer of Pro-property Act and Section 17(b) of the Registration Act. See Sakhiuddin Saha v. Sonaulla Sarkar 45 Ind. Cas. 986 : 22 C.W.N. 641 at p. 645 : 37 C.L.J. 453. In a case of assignment of a mortgage decree, however, Banerjee and Gordon, JJ., observed: 'it is a deed of assignment, not of any property covered by the decree, bat of the decree itself, and the decree, though it be a decree upon a mortgage-bond, can in no sense be regarded as immoveable property. It clearly does not some within the definition of immoveable property given in the Registration Act, and we must, in applying the provisions of the Registration Act, be careful to distinguish between a decree and the property covered by it,' and the learned Judges were of opinion that Section 17 of the Registration Act did not apply to a Kobala or deed of assignment of a decree, and an unregistered Kobala of a decree dealing with immoveable property of more than Rs. 100 in value is not inadmissible in evidence under Section 49 of that Act [see Gout Mahomed v. Khawas Ali Khan 23 C. 450 : 12 Ind. Dec. (N.S.) 300]. The question before us, however, is not whether a mortgage debt or a mortgage decree can be transferred without a registered instrument, but whether a decree for possession of immoveable property is immoveable property within the meaning of Order XXI, Rule 90. In the cane of Baij Nath Lohea v. Binoyendra Nath 6 C.W.N. 5 Hill and Brett, JJ., held: Having regard to the definition of 'immoveable property' as given in the General Clauses Act, a decree upon a mortgage is incapable of being described or regarded as immoveable property and when a mortgage of certain immoveable property is sold in execution of a decree, an application under Section 311, Civil Procedure Code, to set aside the sale is incompetent. The learned Judges relied on the case of Gour Mahomed v. Khawas Ali Khan 23 C. 450 : 12 Ind. Dec. (N.S.) 300, which was also followed in the case of Ahmad Khan v. Abdul Rahman Khan 28 A. 603 : A.W.N. (1904) 148, Having regard to the special provisions made in the Civil Procedure Code for attachment of decrees as distinguished from attachment and sale of immoveable properties and having regard to the case of Baijnath Lohea v. Binoyendra Nath 6 C.W.N. 5 cited above, we are unable to hold that a decree for possession of immoveable property is immoveable property within the meaning of Order XXI, Rule 90, and we think that the Court below is right in holding that the application did not lie for setting aside the sale under the provisions of that rule.

5. We think, therefore, that the Rule must be discharged with costs, hearing fee one gold mohur.


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