JUDGMENT
Choudhary, J.
1. This is an application in revision on behalf ot the decree-holder against an order of the learned Subordinate Judge, first court, Arrah allowing the claim of the opposite party under Order 21, Rule 58, of the C. P. C. The short facts are these. On the 2nd of June, 1949, one Bansrapan Sahu and others took a rehan bond for Rs. 850/ from one Sarwan Mahto with respect to three plots, one of which was plot No. 2597. The opposite party purchased this plot from the heirs of Bansropan by virtue of two sale deeds dated 15-6-1943, and they redeemed the above rehan by paying the entire mortgage money to the mortgagee on 6-6-1944.
The petitioner had obtained a money decree against Bansropan Sahu and others, and in execution of that decree the petitioner sought to proceed against the interest of his Judgment-debtor in the aforesaid rehan bond. In execution of the decree an attachment under Order 21, Rule 54 of the Code of Civil Procedure was issued with respect to the above rehan property on 8-8-1941, and the same was served at the spot on 10-8-1941. A copy of this attachment was also affixed in the court house On 13-8-1941.
The petitioner also took steps for issue of attachment under Order 21 Rule 46 of the Code of Civil Procedure and the attachment under that provision was served upon the judgment-debtors on 3-11-1941. An attachment under this provision was also taken out against the heir of the mortgagor since deceased, and, according to the finding of the Court below this was served on him on 3-12-1941. The case of the petitioner is that the opposite party purchased the plot in question after the attachment referred to above had been effected and, therefore, they had no right to put forward any claim as against him.
The Court below held that the service of attachment under Order 21, Rule 54, was duly effected in accordance with law, but the attachment under Order 21, Rule 46 of that Code was invalid as a copy of the order prohibiting the creditor from recovering the debt and the debtor from making the payment was not affixed on some conspicuous part of the Court house as required by Sub-rule (2) of that rule. It also held that the attachment was of a debt which could only be made under Order 21, Rule 46 of the Code of Civil Procedure and not under Order 21, Rule 54 of that Code, and, as the attachment under Order 21, Rule 46 was invalid, it could not affect the sale taken by the opposite party. The claim of the opposite party was, therefore, allowed. Being thus aggrieved, the decree-holder has come up to this Court in revision.
2. As stated above, the finding of the court below is that there was no valid attachment under Order 21, Rule 46 of the Code of Civil Procedure, and this finding has not been challenged by Mr. Verma appearing for the petitioner. Rather, he has accepted the correctness of this finding which is supported by a Bench decision of this Court in Narendra Prasad Sinha v. Janki Kuer, AIR 1947 Pat 385. It was held in that case that the provisions of Order 21, Rule 46(2) being mandatory, the failure to comply with any one requirement thereof nullifies the whole proceeding, and the defect is not curable under Section 99.
Thus, on the above finding in the present case there was no valid attachment under Order 21, Rule 46 of the Code of Civil Procedure. The court below, however, found that the attachment under Rule 54 of that Order was duly effected and this finding has not been challenged by Mr. Srideo Narain appearing for the opposite party. He has, however, contended that the decree-holder, while seeking execution of his decree as against the aforesaid mortgagee’s interest of his judgment-debtors sought to proceed against a debt and, therefore the attachment should have been under Order 21, Rule 46 of the Code.
On the other hand, Mr. Venna has contended that the interest of the usufructuary mortgagee is an immovable property and, therefore, the attachment could be only under Rule 54 of Order 21, which, in this case, has been found to have been validly effected. Thus, the question that falls to be determined in the present case is whether the attachment should have been made under Order 21, Rule 46 of the Code of Civil Procedure or under Rule 54 of that Order.
3. Order 21, Rule 54(1) states that where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge. Attachment under this rule, therefore, does not prohibit any one from either receiving the payment or making the payment. Prohibition as regards transferring or charging does not include receiving or making payment.
Thus, notwithstanding the service of attachment under this rule in the present case, the Judgment-debtors could legally receive payment of their mortgage money from the mortgagor and the mortgagor also could legally make payment of the same to the mortgagee. Of course after this attachment the judgment-debtors could not transfer or charge their mortgagee’s interest, but there was nothing to prohibit them from accepting payment in satisfaction of the mortgage dues or the mortgagor from making the payment and redeeming the mortgage.
Thus, on the terms of this rule themselves, it is not possible to hold that when a decree-holder seeks to attach the mortgagee’s interest of his judgment-debtor so as to prevent him from receiving the mortgage money and his mortgagor from making payment to him, an attachment could be made under this rule.
4. Order 21, Rule 46, so far as is relevant for the present case lays down that in case of a debt not secured by a negotiable instrument the attachment shall be made by a written order prohibiting the creditor from recovering the debt and the debtor from making payment thereof until the further order of the Court. Thus, if the decree-holder wants to attach a debt payable to his judgment debtor, he has to make attachment under this rule, similarly, it” the decree-holder wants that his judgment-debtor should not receive payment of the mortgage dues from his mortgagor or that the mortgagor should not pay the same to him, he has to make the attachment under this rule.
5. It has, however, been contended by Mr. Vermu that a usufructuary mortgage is not a debt but is an immovable property. In my opinion, the argument is based on misconception of the transaction of mortgage. “Mortgage” is defined in Section 58(a) of the Transfer of Property Act to be the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced, or to be advanced by way of loan, an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability.
From the above definition itself it appears that there is a debt or some pecuniary liability the payment of which is secured by this transaction. In other words, a mortgage is a transfer of an interest in specific immovable property as security for the repayment of the debt and the characteristic feature of this transaction is that the right in the property created by the transfer is accessory to the right to recover the debt.
The debt or pecuniary liability always subsists in a mortgage. A mortgage is a combination of a contract of debt and a conveyance by way of security for the payment of that debt. The existence of a debt cannot be taken away from the mortgage so long as it subsists. Therefore, in my opinion, it cannot legally be said that in a mortgage there is no debt. Of course, there are various kinds of mortgages, one of them being a usufructuary mortgage. In this kind of “mortgage the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgage money and to receive the rents and profits accruing the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage money, or partly in lieu of interest or partly in payment of the mortgage! money.
Thus, in a usufructuary mortgage what is transferred is a right of possession and enjoyment of the usufruct so long as the mortgage dues are not satisfied. The existence of a debt, therefore, is found in this kind of mortgage also. The distinction between this kind of mortgage and some other kinds of mortgages is that, whereas in the latter the debt is realisable by the mortgagee, it is not so in a case of this kind of mortgage. In other words, there is no covenant to pay in a usufructuary mortgage, and, as such, the mortgagee cannot enforce the realisation of the mortgage money.
That, however, does not prevent the mortgagor from making the payment of the mortgage dues after the expiry of the due date of payment except in the case of such a usufructuary mortgage where the entire mortgage money is to be satisfied out of the usufruct of the mortgaged property, and there is nothing to be paid by the mortgagor to the mortgagee. In such a usufructuary mortgage the question of prohibiting the judgment-debtor From receiving the payment and the mortgagor from making the payment does not arise, and the attachment could be made under Order 21, Rule 54, prohibiting the judgment-debtor from transferring or charging the same.
So far as the usufructuary mortgage in which the mortgagor has a right to repay the mortgage money is concerned, the mode of” attachment will depend on the relief which the decree-holder seeks in execution. If he wants that his judgment-debtor should not receive payment of the money or his mortgagor should not pay the same to him, the attachment has to be made under Order 21, Rule 46 of the Code of Civil Procedure. But, it he only wants that his judgment-debtor should not transfer or charge his mortgagee’s interest without prohibiting him from receiving the payment or his mortgagor from making the payment, the attachment could be made under Order 21, Rule 54 of the Code.
In such a case, therefore, if the attachment is under Rule 54, the transfer or charge in respect thereof will be subject to the attachment and if the attachment is under Rule 46, the realisation and payment of the money will be subject to the attachment.
6. The usufructuary mortgage in question recites that the said mortgagee should remain in possession and occupation of the rehan property, appropriate the profits thereof in lieu of interest on the debt and on the expiry of the due date when he (the executant) or his heirs and representatives shall repay the principal amount without bearing interest in one lump sum on the 30th Jeth of any year he shall take back the deed and the land let out in rehan. There is thus no covenant or payment of the mortgage debt by the mortgagor to the mortgagee. Therefore, the mortgagee could not claim the payment of the debt. Nevertheless, the original loan advanced subsisted and the mortgagor could always claim after the expiry of the due date of payment, which in this case had already expired, to pay off the loan so advanced.
In my opinion, where the mortgagee can claim the realisation of his mortgage money or the mortgagor can claim the payment thereof, there is a debt and if any decree-holder wants to attach it, the attachment must be made by prohibiting the mortgagee creditor from realising the debt from his debtor or the mortgagor-debtor from making payment thereof to the mortgagee. Such an attachment can only be made under Rule 46 of Order 21, and not under Rule 54 of that Order.
7. The view that I have taken gains support from a Bench decision of the Madras High Court in Ramaswami Mooppan v. Srinivasa Iyengar, ILR 39 Mad 389 : (AIR 1916 Mad 434). In that case it was held that attachment of the interest of a usufructuary mortgagee in a certain property should be in the manner provided by Order 21, Rule 46, Civil Procedure Code for the attachment qf a debt and not in the form provided for the attachment of immovable property, and that, where there was an attachment of the usufructuary mortgagee’s right in the manner prescribed for attachment of immovable properties and the mortgagor who did not receive from court any order prohibiting him from making payment of the usufructuary mortgage debt, discharged the same by payment and obtained from the mortgagee a release of his rights some time prior to the actual sale thereof in court auction, the sale of the mortgagee’s right in court auction was invalid and the purchaser acquired nothing by the purchase as against the mortgagor who had redeemed the mortgage by payment.
Their Lordships observed that where in accordance with the document the mortgagee cannot claim to recover any debt from the mortgagor, nor can the mortgagor claim to make any payment to the mortgagee, it would seem that the attachment of the rights arising under such a document cannot take the form containing in Order 21, Rule 46, of the Code of Civil Procedure (Section 268 of the Code of Civil Procedure 1882) inasmuch as that form consists of prohibitions from taking and receiving payment and that it would be meaningless to prohibit persons horn making and receiving payment when their relation is such that no payments are contemplated. Their Lordships also relied on an earlier decision of that court in C. Peetikayil Nammad v. Othenam Nam-biar, 27 Mad LJ 239 : (AIR 1915 Mad 551), and stated 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. The same view has been taken in Papi Naidu v. Subbaraya Chetty, AIR 1934 Mad 498.
8. On behalf of the petitioner reliance has been placed on the cases of Manilal Ranchhod v. Motibhai Hemabhai, ILR 35 Bom 288 ; Subraya Pai v. Subramania Pattar, AIR 1928 Mad 648; and Gajadhar Rai v. Beehraj Marwari, AIR 1931 Pat 63. In the case of ILR 35 Bom 288, it was held that in the case of a usufructuary mortgage, there was no debt payable by the mortgagor to the mortgagee which could be attached in execution of a money decree against the assignee of the mortgagee and Section 268, Civil Procedure Code, 1882 (which is equivalent to Order 21, Rule 46 of the present Civil Procedure Code) was not applicable to such a case and that the procedure should be by attachment, under Section 274 of the Civil Procedure Code (which is equivalent to Order 21, Rule 54 of the present Civil Procedure Code) of the interest in immovable property and its sale according to the provisions of the Code.
The above proposition, in my opinion will be quite correct if the usufructuary mortgage is such in which neither the mortgagee can claim to realise the money nor the mortgagor can claim to pay the money. But if that principle is to be applied to a case where, though the mortgagee cannot claim payment but the mortgagor can claim to make payment and the decree-holder wants that the payment should not be made, I feel inclined to differ from that view. The terms of the usufructuary mortgage in that case were, no doubt, similar to those of the present case. But in that case the view of their Lordships appears to be that there is no debt if a mortgagee is not entitled to enforce its realisation.
The fact that the mortgagor can claim to make payment of the dues under the usufructuary mortgage and thus redeem the mortgage was not considered at all by their Lordships. Moreover, the terms of Order 21, Rule 54, which as I have shown above, do not prohibit the acceptance of the mortgage dues by the mortgagee or the payment thereof by the mortgagor were not considered by them. Their Lordships also did not examine the inseparable existence of a debt in the transaction of a mortgage the payment of which is secured by that mortgage. In AIR 1928 Mad 648, a single Judge decision of that court, the same view was taken and the Bench decision of that court in ILR 39 Mad 389 : (AIR 1916 Mad 434), referred to above was distinguished on the ground that in that case there was covenant by the mortgagor to pay the mortgage amount.
The learned Judge, however, though noticed the observation made by their Lordships in the Division Bench case that if the mortgagor could claim to make payment to the mortgagee the attachment would be under Order 21, Rule 46, did not give any weight to it. In AIR 1931 Pat 63, it was held that the procedure under Order 21, Rule 54 is limited to the case where the judgment-debtor’s rights are purely those of a usufructuary mortgagee. It was further held that there is a distinction between a purely usufructuary right in the judgment-debtor where he cannot realise a debt and the case where a debt is realizable and that if a debt is realizable, the procedure under Order 2l, Rule 46, is the correct procedure to apply.
I have no hesitation to accept the correctness of this decision if by the terms “a purely usufructuary mortgage” their Lordships meant that kind of usufructuary mortgage where nothing was payable by the mortgagor to the mortgagee. But if their Lordships meant, as is contended by the petitioner, that the above principle applies also to a usufructuary mortgage where though the mortgagee cannot claim payment yet the mortgagor may claim to make payment and the decree-holder wants him to make that payment, I have only to say that their Lordships were not called upon in that case to decide that question as in that case the debt was realizable by the mortgagee, and any observation made in that regard is a mere obiter. It, however, appears that their Lordships approved the decision of ILR 39 Mad 389 : (AIR 1916 Mad 434), according to which Order 21, Rule 46, applied even where the mortgagor could claim to make the payment.
9. AS already stated, in the present case no doubt on the terms of the usufructuary mortgage bond in question the mortgagee could not enforce the realisation of the mortgage dues, but, nevertheless, the mortgagor had the right to pay off the same after the expiry of the due date and that right could not exist unless there existed a debt. The due date of payment has also expired. There was thus a debt which could be paid by the mortgagor to the mortgagee and in order to attach the same the attachment should have been made under Rule 46 of Order 21, Civil Procedure Code prohibiting the debtor from making any payment to the creditor. On the finding that the usufructuary debt was paid off by the claimants opposite party in the absence of any valid attachment under Order 21, Rule 46, Civil Procedure Code, their claim was rightly allowed by the court below.
10. There is thus no merit in this application which must be dismissed with costs. Hearing fee : Rs. 100.
Ramaswami, C.J.
11. I agree.