NAIDU Vs. SUBBAROYA CHETTY

JUDGEMENT

(1.) THIS appeal raises an important question as regards the validity of an attachment effected under Order 21, Rule 46 of the Civil P. C.. The 1 defendant held an anomalous mortgage and under the terms of the mortgage deed was in possession of the property. The plaintiff obtained a decree against him, attached his interest in the, mortgage under Rule 46, brought it to sale and purchased it in Court auction. The plaintiff, as the purchaser of the 1st defendant's mortgage interest, has brought this suit for possession and for mesne profits. As regards his claim to possession, no question arises, as the property has since the suit been delivered to the plaintiff. The lower appellate Court has passed a decree for mesne profits not only against the 1 defendant, who does not appeal, but also against defendants 2 to 6, with whose liability alone we are now concerned. I have said that the plaintiff himself became the purchaser at the Court sale; he obtained the sale certificate on the 27 July, 1926 and on the next day, i.e., on the 28th, the 1 defendant leased the property to the 2nd. On the 5 May, 1927, the present suit was commenced and the property was delivered to the plaintiff on the 9 May, 1928. The mesne profits claimed are for the period between the date of the lease and the date of the delivery. Mr. Ramaswami Aiyangar for the appellant (2nd defendant) contends that, though by reason of the attachment under Rule 46 the mortgage debt was validly attached, there was, so far as the right to possession was concerned, no legal attachment. It must now be taken as settled, that the procedure to be followed as regards the attachment of a mortgage debt is that prescribed by Rule 46. The question arose whether a mortgage debt was "a debt not secured by a negotiable instrument" within the meaning of that provision. The contention was put forward that a mortgage was an interest in immoveable property and that Rule 46 would not therefore apply; but that contention was rejected and the Courts held that a debt secured by a .mortgage was none the less a debt for the purpose of the rule in question. The earlier cases that arose, such as Karim-un-nissa V/s. Phul Chand (1893) I.L.R. 15 All. 134, Tarvadi Bholanath V/s. Bai Kashi (1901) I.L.R. 26 Bom. 305 and Nataraja Iyer V/s. The South Indian Bank of Tinnevelly (1911) I.L.R. 37 Mad. 51 : 22 M.L.J. 105 were in respect of simple mortgage debts; the argument that a mortgage debt should be treated as immoveable property was repelled, as I have said, in those cases and the judgments in Tarvadi Bholanath V/s. Bai Kashi (1901) I.L.R. 26 Bom. 305 contain a lucid statement of the reasons for the view the learned Judges adopted. In those cases the question was left open, whether or not a mortgage debt under a promissory mortgage could be attached under this provision; that question has since been answered in the affirmative in Chullile Peetikayil Nammad V/s. Othenam Nambiar and Ramasami Mooppan V/s. Srinivasa Iyengar (1915) I.L.R. 39 Mad. 389 : 28 M.L.J. 338. The effect of these decisions is shortly this the attachment of a mortgage debt operates not only on the debt but also on the security, which fastens itself to the debt; the security therefore follows the debt. In other words, even granting that the interest of the mortgagee is immoveable property, that interest arises from the debt and is ancillary to it; therefore there is no further necessity to attach the security as immoveable property, when the debt has already been attached. In Manilal Ranchod v. Motibhai Hemabai (1911) I.L.R. 35 Bom. 288, in the case of a usufructuary mortgage, a different view seems to have been taken, but that decision has been distinguished by our Court in two cases--Ramasami Mooppan V/s. Srinivasa Iyengar (1915) I.L.R. 39 Mad. 389 : 28 M.L.J. 338 and Nataraja Iyer V/s. The South Indian Bank of Tinnevelly (1911) I.L.R. 37 Mad. 51 : 22 M.L.J. 105--the ground of distinction being, that in the Bombay case it was assumed that the mortgagor had no right to pay and the mortgagee no right to demand. But Mr. Ramaswami Aiyangar urges that the point he now raises is uncovered by authority; what he contends is, that although the debt has been validly attached under Rule 46, the right to possession has not been affected, because it can only be attached under Rule 54 as immoveable property. That is to say, according to him, the debt. must be attached under Rule 46 and further, under Rule 54 the right to possession must be separately attached; there must thus be a twofold attachment. I think, on the authorities as they stand, I cannot accede to this contention. According to both, Tarvadi Bholanath V/s. Bai Kashi (1901) I.L.R. 26 Bom. 305 and Nataraja Iyer V/s. The South Indian Bank of Tinnevelly (1911) I.L.R. 37 Mad. 51 : 22 M.L.J. 105, the security follows the debt and it is difficult to distinguish between one part of the security, i. e., the right to bring the property to sale and the other part of it, namely, the right to possession; indeed, the expression "security," as used in Ramasami Mooppan V/s. Srinivasa Iyengar (1915) I.L.R. 39 Mad. 389 : 28 M.L.J. 338, is expressly made to cover the right to possession, as the following passage shows: On the other hand the decision in Chullile Peetikayil Nammad V/s. Othenam Nambiar proceeds on the basis that where there is a debt payable by the mortgagor, the fact that the mortgagee is in possession of the land does not the less make it a debt, nor is the mode of attachment of such debt affected by the collateral security for such debt, even though that security may take the form of possession of the property. 3. Mr. Ramaswami Aiyangar points out that some hardship results from the view I have taken. Under Rule 46 an attachment is effected inter alia by a prohibitory order being served upon the debtor; but if the debtor happens to be at a place different from where the mortgaged property is, there being no proclamation under Rule 54, the attachment is not brought to the knowledge of third parties. I cannot, however, allow considerations of this sort to influence my judgment. As has been pointed out in Tarvadi Bholanath V/s. BaiKashi (1901) I.L.R. 26 Bom. 305 by Sir Lawrence Jenkins, C.J., even in the case of a simple mortgage debt, "it may be that a more complete safeguard could be devised, but that is beside the question". If the hardship pointed out is real, that may be a good reason for the changing of the rule, but with that I am not here concerned. 4. In the result, the second appeal is dismissed and in this Court I direct each party to bear his costs.