RAM KRISHNA DAS SURROWJI Vs. SURFUNNISSA BEGUM, RICHARD HENDRY

JUDGEMENT

(1.) IN this case the Appellant sued on a mortgage title, completed, as he alleged, by foreclosure under Regulation XVII. of 1806, Section 8, to recover possession of the property in suit from the Respondent, who held it as purchaser at an execution sale in a suit against the mortgagor. The mortgage deed was in the English form, with a power of sale. Inasmuch as it was sought to be enforced in the mofussil, the procedure prescribed by the regulation has been applied to it as if it were a mere bye-bil-wafa, or deed of conditional sale. The suit is the ordinary suit which in such cases the mortgagee who has foreclosed is obliged to bring in order to recover possession of the mortgaged premises, with this difference only, viz., that it is brought against the purchaser under the execution sale as well as against the mortgagor, and that the former is the substantial Defendant.

(2.) IN such a suit the Plaintiff has to make out his title to dispossess the other party, and any objection which can be taken either to the original mortgage title or to the proceedings in foreclosure may be taken.

(3.) IN these circumstances Surfunnissa Begum, on the 20th of May, 1873, executed the mortgage under which the Plaintiff claims; and the principal question raised by this appeal is whether that alienation of the property was not, by reason of the attachment, null and void as against the attaching creditors and those deriving title under them. The decree in that suit was made on the 13th of September, 1873, and the proceedings in execution began on the 18th of the same month; and it has been suggested on the part of the Appellant that, inasmuch as one of these proceedings consisted in an attachment after judgment, it must be presumed that the actual sale in execution proceeded under this subsequent attachment, and that the Respondent cannot claim the benefit of the former attachment. Upon this point the learned Judges .of the High Court say:---"The attachment never was removed, and the property remained unaffected by this mortgage (so far as the person at whose suit the attachment issued) at the time it was attached and sold in execution of the decree." Their Lordships must, therefore, assume that, although where property has been attached before judgment it is usual to re-attach it after judgment, that proceeding implies no abandonment of the first attachment, which gives the priority of lien. There is no trace here of any express abandonment. If this be so, and there were, as their Lordships think there was, a valid and subsisting attach-merit at the date of the mortgage, that alienation, unless it can be shewn not to fall within the provisions of the 240th section, was null and void as against the attaching creditor and those who claim under him.