JUDGMENT
M.L. Singhal, J.
1. Punjab & Sind Bank filed suit for the recovery of Rs. 11,95,400/- together with interest pendente lite and future interest at the rate of Rs. 19.5% + 2.5% per annum from the date of filing of the suit till its realisation in the High Court of Delhi under Order 34 Rule 4 CPC against M/s Maya Enterprises and others. It was prayed that the decretal amount be got recovered from the defendants whose liability was joint and several. It was also prayed that preliminary decree under Order 34 Rule 4 CPC be passed in favour of the plaintiff and against Ashok Kumar, Ravinder Kumar Sharma, Deepak Kumar Sharma and Mrs Parkash Nath wife of late Parkash Nath defendants No. 2, 4, 5 and 6 and against the immovable properties commonly known as B-35, Aruna Park, Shakarpur, Delhi and 190-L, Model Town, Rohtak, Haryana. It was also prayed that the hypothecated stock in trade of iron and steel and/or of any other nature be also ordered to be sold and the sale proceeds thereof after deducting the expense for sale be paid to the plaintiff-bank. It was also prayed that in case the sale proceeds of the mortgaged properties and hypothecated stocks were found insufficient to satisfy the decree, decree be passed against the defendants against their person and personal properties.
2. This suit was decreed by the Debt Recovery Tribunal, Delhi at New Delhi and the defendants were ordered:
(i) to pay a sum of Rs. 11,95,400/- alongwith pendente lite and future interest at the rate of Rs. 19.5 + 2.5% per annum from the date of filing of suit, till its realisation in favour of the bank.
(ii) the defendants shall also pay the cost of the suit.
(iii) the defendants shall be jointly and severally liable to pay the said amount within four weeks from the date of receipt of this order.
In the event of failure on the part of the defendants to pay the said amount within stipulated period, the bank shall be entitled to recover the said amount from the defendants by sale of hypothecated stock as per deed of hypothecation and mortgaged property No, B-53 (Plot No. 16), Aruna Park, Shakarpur, Delhi, forming part of Khasra No. 1057/477, village Mandawali Fazalpur, measuring 200 sq.yards and bounded as East: Plot of Mr Piara Lal, West: Plot of Sarbati Devi, South: Road 30 ft: North: Passage 7 ft and property No. 190-L, Model Town Rohtak, Haryana measuring approximately 427 sq. yards and bounded as East: Kothi of Mr. Brij Lal Babbar, West: Road, North: Kothi of Mr. Brij Lal Babbar and South: Road. It was also ordered that if on the sale of hy-
pothecated stock as per deed of hypothecation and the mortgaged property, the entire amount was not recovered, the balance shall be recovered from the defendants jointly and severally, This decree is dated 6.10.1998.
3. There was another decree in favour of the State Bank of India, Rohtak against M/s Ekta Industries Corporation, Industrial Area, Bahadurgarh through Sh. Ashok Ku-mar, Ashok Kumar, Deepak Kumar- sons of late Parkash Nath Sharma, Smt. Maya Devi-widow of Parkash Nath Sharma, Smt Shashi and Smt Janak-daughters of late Sh. Parkash Nath Sharma for the recovery of Rs. 5,20,982.48 P, with costs of the suit and future interest at the agreed rate. State Bank of India filed execution application against M/s Ekta Industries Corporation and Ashok Kumar etc. in which property bearing No. 190-L, Model Town, Rohtak which was earlier mortgaged with the Punjab and Sind Bank was being sold. Objections were filed by the Punjab and Sind Bank in the Executing Court inter alia pleading that the property bearing No. 190-L, Model Town, Rohtak had been mortgaged with the Punjab and Sind Bank on 19.2.1979. Those objections were contested by the State Bank of India and it alleged that the said property had been granted in their favour by Parkash Nath on 22.7.1980 by way of an equitable mortgage by way of depositing the copy of the sale deed dated 6.11, 1969 registered in the office of Sub Registrar. Rohtak as document No. 3111, Book No. 1 Vol. 416 at page 182 dated 11.11.1969.
4. It was also pleaded that as per the provisions of law, no equitable mortgage of property could be created on the basis of copy of the title deed and it is original title deed which is required to be deposited to create an equitable mortgage. No equitable mortgage could thus be said to have been created in favour of the State Bank of India, Rohtak.
5. Those objections were contested by the State Bank of India and it alleged that the said property had been granted in their favour by Parkash Nath on 22.7,1980 by way of an equitable mortgage by way of depositing the copy of the title deed dated 6.11.1969 registered in the office of Sub Registrar, Rohtak as document No. 3111, Book No. 1 Vol. 416 at page 182 dotted 11.11.1969.
6. These objections were dismissed by learned Subordinate Judge 1st Class, Rohtak vide order dated 8.3.1995.
7. Punjab and Sind Bank filed appeal, which was dismissed by learned District Judge, Rohtak vide order dated 15.9.1999.
8. Still not satisfied, Punjab and Sind Bank has come up in further appeal to this Court.
9. What weighed with the learned Executing Court while dismissing the objections of the Punjab and Sind Bank was that the JDs and objector had joined hands so that the decree obtained by the State Bank of India, Rohtak was thwarted and not executed and the property which was being enjoyed by the JDs was not auctioned. It was further observed that this property be auctioned for the recovery of the amount due to the State Bank of India and in case of excess sale amount the same be got deposited with the State Bank of India and the State Bank of India would pay the interest to the objector bank i.e. Punjab and Sind Bank on the same rate which is to be fixed by the High Court of Delhi.
10. Learned District Judge, Rohtak while dismissing the appeal up-held the dismissal of the objections. What the learned Distt. Judge has observed is that the Punjab and Sind Bank was unable to show that the property in question was ordered to remain under attachment by the Executing Court, during the course of execution proceedings of the decree passed in favour of the State Bank of India, Rohtak. Objection petition under Order XXI Rule 58 CPC was not maintainable. If the Punjab and Sind Bank had no right to file the objection petition, the question of filing of appeal under Order XXI, Rule 58 (clause (4) against the dismissal of objection petition did not arise being not maintainable. Learned Distt Judge found that the provisions of Order 21 Rule 58
CPC could come into play only when there was attachment of the property by the Executing Court during execution proceedings.
11. Learned counsel for the appellant-Punjab and Sind Bank submitted that house No. 190-L, Model Town, Rohtak already stood mortgaged with the Punjab and Sind Bank, New Delhi in consideration of loan advanced to M/s Maya Enterprises on 19.2.1979, as security for the repayment of the entire amount due, late Sh. Parkash Nath and M/s Deepak Kumar Sharma deposited their title deeds of immovable properties commonly known as 190-L, Model Town, Rohtak and B-53 Aruna Park, Shakarpur, Delhi, respectively with an intent to create mortgage in favour of the bank over the said properties. They confirmed the creation of equitable mortgage in favour of the bank in writing on 20.2.1979.
12. House No. 190-L, Model Town, Rohtak mortgaged with Punjab and Sind Bank can be sold but sale proceeds will, however have to be appropriated in the first instance in satisfying the decree in favour of the Punjab and Sind Bank against M/s Maya Enterprises and others. The property mortgaged with the Punjab and Sind Bank was meant to satisfy the decree obtained by the Punjab and Sind Bank. It was not required to be attached over again in execution of the decree obtained by the Punjab and Sind Bank. Left overs could however be used in satisfying the decree obtained by the State Bank of India, Rohtak.
13. It was held in M.S. Doraisami Iyer v. Arunachalam Chettiar and Ors., AIR 1991 Madras 275, that Rule 58 of Order 21, CPC can come into play only when there is an attachment. In the case of mortgage there is no question of attachment. Therefore, in execution proceedings of mortgage decree for the sale of property, an application under Order 21 Rule 58 CPC in execution proceedings is not maintainable.
14. House No. 190-L, Model Town, Rohtak can not be sold in execution of the decree obtained by the State Bank of India. It can be sold in execution of the decree obtained by the Punjab and Sind Bank, New Delhi with which this property was mortgaged by M/s Maya Enterprises in lieu of loan received on 19.2.1979 by M/s Maya Enterprises. Loan obtained from the Punjab and Sind Bank, New Delhi by M/s Maya Enterprises and others would constitute a first charge on House No. 190-L, Model Town, with which it was mortgaged on 19.2.1979. It could not be mortgaged over again in favour of the State Bank of India. Equitable mortgage can be created by a original title deed and not by a copy thereof, particularly when this property was already subject of the lien in favour of the Punjab and Sind Bank, New Delhi created on 19.2.1979.
15. So, this appeal is allowed and the judgments of both the courts below are set
aside. Objections filed by the Punjab and Sind Bank are allowed and it is declared the
State Bank of India had no right to put property bearing No. 190-L, Model Town,
Rohtak to auction in execution petition No. 34/10 dated 25.9.1989 titled State Bank of
India, Rohtak v. Ekta Industries and Ors.