1. This is an application by one Onkermull Joshi, who is not a party to the suit, to be made a party thereto with liberty to file a written statement.
2. The suit is on a mortgage dated September 18, 1929, the sum secured thereby being Rs. 21,975. The plaintiff is the assignee of the original mortgagee, and. in the suit he has impleaded certain puisne mortgagee as well as the mortgagors.
3. The present applicant instituted a money suit against some at any rate of the mortgagor defendants in this suit, in which a consent decree was made on March 5, 1931.
4. The terms of settlement were that there should be a decree for Rs. 4,000 payable after three years from the date of the decree, and if at the end of that period the defendants had not paid the decretal amount, it was to carry interest from the end of such period until satisfaction. For the purposes of this application the important term of the settlement is term (e) which is as follows:
The shares of the defendants in the premises No. 3, Munshi Sadaruddin Lane, will remain charged for the decretal amount subject to previous encumbrances.
5. The premises mentioned are covered by the mortgage which the plaintiff in this suit is seeking to enforce.
6. On December 12, 1935, the present applicant applied for execution of the decree in the suit instituted by him by the appointment of a Receiver in execution under Section 51 (d). of the Code of Civil Procedure. An order was made for the appointment of the Official Receiver who took possession. On March 3, 1936, the plaintiff applied for and obtained an order as is usual in a mortgage suit for the appointment of the Official Receiver as Receiver of the mortgaged property. The present applicant claims that he is a necessary party to the present suit who must be joined under the provisions of O XXXIV, Rule 1, which enacts that all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. The applicant says that he falls within the class contemplated by the rule because of the provisions of Section 91 of the Transfer of Property Act.
7. That section provides that besides the, mortgagor any of the following persons may redeem or institute a suit for the redemption of the mortgaged property.
Any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same.
8. The first submission made on behalf of the applicant is that by reason of the consent decree of March 5, 1931,. he has a charge upon the property. I am or opinion that whatever his rights may be, he cannot claim a charge by reason of the terms of the consent decree because admittedly the decree has not been registered, and, under Section 17 (2) (vi) of the Registration Act, although decrees and orders of the Court are exempt from registration, the exemption does not apply to decrees or orders expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding. It is not argued that the consent decree of March 5, 1931, does not fall within that exception, but Mr. Kanjilal maintains that he is not affected by the failure of his client to have the decree registered because any difficulties that the want of registration might occasion, are got over by Section 53-A of the Transfer of Property Act. I do not think it is necessary to set cut that section in extenso, and it will be sufficient to observe that it only applies, where the transferee has in part performance of the contract taken possession of the property or any part thereof, or the transferee, if already in possession, continues in possession in part performance of the contract, and has done some act in furtherance of the contract. To my mind a judgment-creditor, who in circumstances like the present has obtained an order for a Receiver, in pursuance of which the Court is in possession of property through its Receiver, cannot possibly be said to have taken possession of the property in part performance of a contract. In my opinion Section 53-A does not assist the applicant in escaping from the difficulties occasioned by his failure to register his decree under the mandatory provisions of Section 17 of the Indian Registration Act. The matter, however, does not end there, because the applicant argues that even if he has not a charge on tie mortgaged property, he has an interest in it or in the right to redeem within the meaning of Section 91 (a) of the Transfer of Property Act.
9. Now under the section as it stood prior to 1929 persons who had a right to institute a suit for redemption were specified with more particularity, than they are under the section as it at present stands and although under Sub-section (f) of the old section, a judgment creditor who had obtained execution by the attachment of the mortgagor's interest in the property, had a right to institute a suit for redemption, no similar right was conferred by the section upon a judgment-creditor who, in execution of a money decree, had had a Receiver of the mortgaged property appointed. However in my opinion there is no reason to refer to the repealed section for the construction of the section as it now stands.
10. It has been held that an attachment creates no charge on immovable property attached [See Frederic Peacock v. Madan Gopal 29 C 428 : 6 CWN 577] and this principle appears to me to have been further developed by the Madars High Court in the Full Bench case of Subramania Chettiar v. Sinnammal 53 M 881 : 127 Ind. Cas. 624 : (1930) MWN 798 : 32 LW 395 : AIR 1930 Mad. 801 : 59 MLR 634 : Ind. Rul. (1930) Mad. 1008 (FB).There it was specifically held that an attaching decree-holder had no interest or charge on the immovable property attached, and was, therefore, not a necessary party within the meaning of Order XXXIV, Rule 1, of the Code of Civil Procedure, to a suit by the mortgagee. In my opinion that case is a logical development of the principles laid down in previous cases. I should be most reluctant to differ from it, even if it is not technically binding upon me. If an attaching creditor cannot' be said to have an interest in the mortgaged property, it is hard to see why the position of a judgment-creditor, who has obtained an order for a Receiver in execution who is holding the property as an Officer of the Court, should be more advantageous. As on previous occasions when questions of this sort have been discussed before me, great stress has been laid by Counsel upon certain observations of the Judicial Committee of the Privy Council in Ananta Padmanabhaswumi v. Official Receiver of Secunderabad . It is true that there are passages in the concluding portion of the judgment delivered by Lord Thankerton, which show that their Lordships were disposed to treat the decisions, which lay down that no lien or charge is created by an attachment, as open to further discussion. But as was pointed out, in the circumstances of that case it was not necessary to decide the point and as far as I am concerned the decisions must be regarded as authoritative, until the Judicial Committee has seen fit to overrule them. Learned Counsel also referred to certain English cases and in particular to. In re Porbola Ltd. Blackburn v. Parbola, Lid. (1905) 2 Ch. 437 where Warrington J. granted the application of a judgment-creditor who had had a Receiver appointed by way of equitable execution to be joined as a party in a mortgage suit, I observe, however, that Counsel for the mortgagee plaintiff in that suit expressly disclaimed any objection to the applicant being made a party, and the only questions raised by him were concerned with the terms, upon which the applicant should be permitted to come in.
11. Mr. Banerjee has drawn my attention to the fact that under the English Law, decree-holders who have taken out execution against interests in real properly belonging to their judgment-debtors, have rights which certainly have no statutory sanction under the Indian Law. The history of the legislation is set out at length by Cozens-Hardy, M. R. in Ashburton (Lord) v. Nockton (1915) 1 Ch. 274 : 81L J Ch. 193 : 111 LT 895 : 59 SJ 145 : 31 TLR 122. In my opinion the applicant has not succeeded in showing that he is a party who ought to have been joined as a defendant or party whose presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle questions involved in the suit. That being so I have no power to add him as a party under Order I, Rule 10 (2) of the Code. It follows that this application must be dismissed with costs. Certified for Counsel.