KABIDI VENKU SAH v. SYED ABDUL HAI AND OTHERS

Citation: [1984] 1 S.C.R. 112

Court: Supreme Court of India

Bench: D.A. DESAI, O. CHINNAPPA REDDY, A. VARADARAJAN

Case summary

He has rightly held that in the claim petition the question of the mortagage of 1948,. 1964 ·and held that what was attached the entire property· and not the equity of redemption , ~lone.

Judgment text

Ill -. _........ KABIDI_ V-ENKU SAH ' -----· ' v. SYED ABDUL HAI AND OTHERS Septqnber 28;1983 [D. A. DESAI, 0. CHINNAPPA REDDY AND A. VARADARAJAN, JJ. ] Code ofCivil Procedure, 1908-0. 21, r. 58-Claim Petition for gettinz an attachment faised-By a ·simp/~ mortgagee having no interest in equity of redemption and not enjoying possession ofproperty-JVhether competent? On the basis of a sirilple mortgage executed in his favour· in- the year 1948, the appellant obtained·a decree on 4-9-1967, brought the mortgaged property to sale, purchased it himself on 24-7-1968 and got the sale confirmed by court on 28-8-1968. The first respondent who held a promissory note exeC:uted in his favour by th~ oWner. of the.

said property in 1961, i~stituted a suit for recovery of the sum on 24-9-1964 and got the property attached before judgment on the same day and thereafter obtained a ·l_TlOney decree on "30-3-1967, and filed an execution petition for realising the money due under the decree by bringing the Property to sale. Thereupon the appellant filed a claim · petition under 0. 21, r. '. '8 C. P. C. , for getting the attachment raised. The claim petition was resisted by·the first respondent inter a/ia on the ground that it was incompetent as the appellant had neither any interest in the equity of redemption nor was he in possession of the property. The· trail court allowed the claim petition holding inter alia that what was ·attached on 24-9nl964 was the entire property and not the eQuity ·of redc~ption alone.

The Civil Revision Petition filed by the first respondent against the order of the trial court was allowed by the High Court which held that the appellant hav:ing failed to prove that he had an interest in the property ·on the date ofthe attachment and was in possession of the property, either actual or const_ructive, on that date he was not entitled to have the attachment raised· Dismissing the appeal, ~ ' HELD : Th~ trial court erttd in observing that what was attached before judgment on"24-9-1964 was not the equity of rcdemPtion but the entire property.. There could be nO doubt that on 24·9·1964 when the ·property. was attached before judgment long a_fter the mortgage dated 31~7~1948 and two , years before the suit Was filed on the mortgage. in 1966, the mortgagor had the -" equity of Tedemption and that what could have been attached in law on 24·9-1964 was the equity of redemption alone and not the entire interest in the property.

The appellant had no doubt an interest i_n the property as mortgagee, bμt re nlY · subject to the mortgage as long as it is subsisting. That is to say he could bring only the mortgagor's equity of redemption to sale if it had not already been extinguished by its sale in e~ecution of any de~ree obtained on tbat mortgage. But if the equity, of redemption has already been sold after the date of the attachment the attaching decree holder could proceed only against the balance, if any, of the. sale price left after satisfying the mortgagee decree-holder's claim under the decree. The mortgagee's right is thus not affected at all. • ' Therefore it is we had observed earlier that the appellant had taken a wrong and ill advised step in coming forwatd with the claim petition which bas resulted in the matter dragging on for over 14 years from 15. 1. 1969. The appellant could not object to the attachment of the equity of redemption.

The appeal fails and is dismissed, but under the circumstances of the case without costs. ' . H. L. C. Appeal dissmissed. '