M.N. Shukla, J. - (1.) THIS execution second appeal raises an important question of law as to whether the judgment debtor was entitled to the benefit of the provisions of Order 34, Rule 14 Code of Civil Procedure.
(2.) THE facts giving rise to the appeal are that a decree for mesne profits was passed against Mohammad Ismail Appellant in original suit No. 59 of 1955 which was a suit for recovery of rent upon the basis of rent note. It was admitted between the parties that the property in dispute was originally purchased by one Mohammad Sadiq, brother of Mohammed Ismail, that Mohammad Sadiq had executed a usufructuary mortgage on 27 -8 -1935 in favour of the decree -holder Lala Chattar Sain, that on the same date Mohammad Sadiq also executed a rent note in favour of the decree holder under which he became a tenant of the premises on a monthly rent, that in 1948 Mohammad Sadiq migrated to Pakistan and his brother Mohammad Ismail, the present judgment debtor, had been in possession of the houses, that the suit was finally decreed in the second appeal by the High Court with the findings that the Defendant was in possession and liable to pay damages for use and occupation to the Plaintiff, who was the usufructuary mortgagee of the entire house. The decree -holder wanted to sell the equity of redemption in the execution of the said decree. An objection Under Section 47 Code of Civil Procedure was filed on behalf of the judgment debtor Mohammad Ismail on the ground that the application of the decree holder was barred Under Order 34, Rule 14 Code of Civil Procedure because the amount arose out of the mortgage.
(3.) BOTH courts dismissed the judgment -debtor's objection and hence this second appeal. The short point which falls for determination is as to whether the provisions of Order 34, Rule 14 Code of Civil Procedure are attracted to the facts of the present case. I have heard the learned Counsel for the parties and also perused the various rulings cited by them. It appears that the present case is not covered by any direct authority on the point and therefore, it has to be decided on an interpretation of the language of Order 34, Rule 14 Code of Civil Procedure which reads as follows: 14 (1) Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage and he may institute such suit notwithstanding anything contained in Order II, Rule 2. (2) Nothing in Sub -rule (1) shall apply to any territories to which the Transfer of Property Act, 1882, has not been extended. The cardinal requirement for invoking the above rule is that the decree must have been obtained for the payment of money in satisfaction of a claim arising under the mortgage. If Rule 14 had simply used the words "a decree for a claim arising under the mortgage" the ambit of the provision would have been much wider and those words would have been susceptible of an interpretation such as was sought to be put by the learned Counsel for the Appellant. The phraseology of the rule, however, appears to be more restrictive in its scope and is not amenable to a wider amplitude. The decree must relate to the payment of money in satisfaction of a claim arising under the mortgage. The well -known claims arising under a mortgage can be only those relating to the mortgage money i.e. the amount secured and the interest thereof. Any other claim, though remotely connected with the mortgage, cannot strictly speaking be said to be a claim arising under the mortgage for the satisfaction of which the decree for payment of money has been passed. In other words, the mere circumstance of a Plaintiff being a mortgagee and by virtue of that position being entitled to a certain amount of money will not be sufficient to characterise his claim as one arising under the mortgage for payment of which the mortgagee has obtained a decree. Besides, the mortgage money and the interest, there can be other claims also which may accrue in favour of a mortgagee but they would not be precisely claims pertaining to the mortgage as such. In this view of the matter I think the intention of the Legislature in providing the bar Under Rule 14, Order 34 Code of Civil Procedure was merely to protect the equity of redemption of a mortgagor by restricting its scope to claims arising per se from the mortgage. The other incidental or remote claims indirectly connected with the mortgage would not be covered by the bar indicated in the proviso. Keeping this underlying principle in mind the various tangible tests may be applied according to the facts of a case for determining whether a particular decree was for payment of money in satisfaction of a claim arising under the mortgage. Thus, for instance, one very reliable and oft applied test is as to whether the two acts form part of a single transaction. If from the facts of a case it can be inferred that the lease was also a part of the mortgage transaction, the rule embodied in Order 34, Rule 14 Code of Civil Procedure would be clearly applicable. It may be found as a matter of fact that the lease in favour of the mortgagor regarding the mortgaged property is a part of the transaction of the mortgage itself and is merely a machinery for realising interest etc. If such inference is warranted by the facts of a case the equity of redemption cannot be brought to save any execution of the decree for rent obtained on such lease but the rule is not applicable when a usufructuary mortgagee has simply leas, ed the mortgaged property to the mortgagor and sues him for rent.;