KABIDI VENKU SAH versus SYED ABDUL HAI AND OTHERS

Citation: [1984] 1 S.C.R. 112 · Decided: 28-09-1983 · Supreme Court of India · Bench: D.A. DESAI · Disposal: Dismissed

Judgment (excerpt)

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KABIDI_ V-ENKU SAH 
v. 
SYED ABDUL HAI AND OTHERS 
[D.A. 
Septqnber 28; 1983 
DESAI, 0. CHINNAPPA REDDY AND 
A. VARADARAJAN, JJ.] 
Code of Civil 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 of property-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 
of the 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, 
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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 <;outd not have been i~ possession of the property as he Was. only a 
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K.B. SAH v. S.A. HAI (Varadarojan, J.) 
113 
simple mOrtgagee. 
He was a secured creditor as he had a mortgage in his 
favour, and any attachment effected after the date of the mortgage and during 
its subsistence could on1y be subject 'to that mortgage. 
Since he had_ no 
interest in the equity of redemption on the date of attachment, he could not 
have had any objection to that right of the mortgagor being attached by the 
first respondent. Therefore, be was not a person who could, tin law, file any 
claim petition under 0. 21; r. 58 objecting to the attachmant of the equity of 
redemption. [116 A; C~D; F-H] 
The attaching creditor can bring the property to sale only 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 execution of any decree obtained ,on that 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 th~s not affected at all. [117 B-C] 
CIVIL APPELLATE JuR1so1c110N : Civil Appeal No. 1833 of 
1970. 
Appeal by Special leave from the Judgment' and Order dated 
the 17.4.1970 of the Mysore High Court in Civil Revision Petition 
No. 1255of1969. 
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A.S. Nambiar, Ashok Kumar Sharma· and M. Veerappa for the 
Appellant. 
R.B. Datar, Divender Singh, Ms. Modhu Moo/chandani and 
Ms. Meenu Verma·for the' Respondent. 
The Judgment of the Court was delivered by 
VARADARAJAN, J. This appeal by special leave is directed against 
the Order dated 17.4.1970 of a learned single Judge of the erstwhile 
Mysore Hi

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