ORDER K.S. Gupta, J.
1. Against the attachment of property No. D-112, Malviya Nagar Extension, New Delhi in execution of the decree in Suit No. 1179/83 - Punjab National Bank Vs. M/s. Orkids & Others, Smt. Bimla Devi, Sh. Vijay Gupta and Dr. Ajit Gupta have jointly filed these objections under Order XXI Rule 58 read with Section 151 CPC. In short it is alleged that on or about 9th May, 1989 the objectors were informed by their neighbours of the affixation of prohibitory order in the form prescribed under Order XXI Rule 54 CPC dated 30th March, 1989 issued by this Court, on the outer gate of property No. D- 112, Malviya Nagar Extension. In terms of this order, said property has been attached. It is stated that the plot of land underneath the said property was demised on perpetual lease basis by Delhi Development Authority to Major H.S. Barar and a perpetual lease deed was executed on 19th December, 1972 and was registered with the office of Sub-Registrar as document No. 28, Additional Book No. 1, Vol. No. 3044 at pages 97 to 102 on 2nd January, 1973. Under an agreement to sell executed in between Major H.S. Barar and the objectors on 12th August, 1986, perpetual lease hold rights in plot of land bearing No. D-112, Malviya Nagar Extension and ownership rights in the super structure constructed thereon, were agreed to be sold for a consideration of Rs 6.5 lacs and the objectors made payment of the entire sale consideration against a receipt to Major H.S. Barar on 12th August, 1986. Major H.S. Barar ceased to have any interest in the said property after 12th August, 1986 and it thus cannot be attached in execution of decree against Major H.S. Barar, judgment debtor No. 4. Even otherwise, as the said property was the only residential property owned by Major H.S. Barar, it is exempted from attachment under Section 60 CPC. It is prayed that the order attaching the said property in execution proceedings may be withdrawn.
2. Punjab National Bank, decree holder/plaintiff contested the objections by filing reply. It is, inter-alia, alleged in the reply that Major H.S. Barar, judgment debtor No. 4 is the owner of property No. D-112, Malviya Nagar Extension and he had created equitable mortgage of the property in favour of decree holder to secure the credit facilities granted by the Bank to judgment debtors No. 1 to 3. As the judgment debtors failed to pay the amount due, the Bank filed Suit No. 1179/83 and a decree for recovery of Rs. 3,73,513/- together with costs and interest etc. was passed against the judgment debtors by this Court on 5th February, 1987. Judgment debtor No. 4 has colluded with the objectors and purportedly entered into an agreement to sell with them during the pendency of the said suit on 12th August, 1986. Sale deed in respect of the said property has not been executed by judgment debtor No. 4 in favour of the objectors till date and the objectors have no right, title or interest in the property.
3. It was urged by Sh. A.K. Singla appearing for the objectors that Suit No. 1179/83 filed against the judgment debtors/defendants was for recovery of money and not under Order XXXIV CPC and the judgment passed on 5th February, 1987 against the judgment debtors was also for recovery of money. In support of the submission, he invited my attention to the plaint and also the judgment passed in the suit. According to the learned counsel, under the agreement to sell dated 12th August, 1986 interest was created in said property No. D-112, Malviya Nagar Extention in favour of the objectors much before the same was attached by this Court in execution of decree passed in the said suit. Thus, the present objections are maintainable and the order of attachment of the property deserves to be withdrawn. Reliance was placed on the decisions in Vannarakkal Kallalathil Sreedharan Vs. Chandramaath Balakrishnan and Anr., , Rango Ramchandra Kulkarini Vs. Gurlingappa Chinnappa Muthal and Ors., (28) AIR 1941 Bombay 198, Veerappa Thevar and Ors. Vs. C.S. Venkatarama Aiyar and Ors., AIR 1935 Madras 872, Harihara Iyer Ramaswamy Iyer Vs. Augusthy Devasia and Anr., AIR 1952 Travancore-Cochin 466 and Yeshvant Shankar Dunakhe Vs. Pyaraji Nurji Tamboli, AIR (30) 1943 Bombay 145. As a part of the said submission, it was further contended that equitable mortgage was not legally created by judgment debtor No. 4 in as much as instead of the original perpetual registered lease deed dated 19th December, 1972, a certified copy thereof was deposited with the Bank by judgment debtor No. 4.
3A. File of Suit No. 1179/83 is tagged with the Execution file and a bare perusal of the plaint reveals that it was a suit for recovery of Rs. 3,73,513/-. However, in para No. 20 of the plaint it was alleged that by virtue of the letter dated 9th March, 1981, defendant No. 4 (judgment debtor No. 4) created further equitable mortgage in respect of property No. D-112, Malviya Nagar Extension in favour of the plaintiff towards repayment of the loan facilities granted to defendants 1 to 3. Further, in the prayer clause, one of the reliefs claimed at No. (d) in the plaint was that in case the defendants fail to pay the decretal amount alongwith interest, the mortgaged property as detailed in said para No. 20 be ordered to be sold and sale proceeds thereof be appropriated towards the decretal amount. Operative portion being para No. 3 of the judgment dated 5th February, 1987 which is also material, runs as under :-
"From the perusal of this ex-parte evidence, the suit of the plaintiff is prima facie established and as such a decree for recovery of Rs. 3,73,513/- together with costs is passed in favour of the plaintiff and against the defendants. All the defendants would be jointly and severally liable in execution of this decree. The defendants would also be liable to pay interest pendente lite and future @ 19.5 % per annum. It is directed that pledged and hypothecated goods would be liable to be sold in execution of this decree and the sale proceeds thereof shall be appropriated towards the decretal amount. It is further directed that in case any part of the decree remains unsatisfied, it shall be recoverable by sale of the mortgaged property in accordance with Order XXXIV read with Rule 15 of the Code of Civil Procedure. The defendants are granted six months' time for payment of the decretal amount and the plaintiff would be at liberty to apply for sale of the mortgaged property."
4. By way of ex parte evidence in the suit, the Bank had examined B.L. Rajpal, ex-manager of Chirag Delhi branch only as PW-1 on 15th January, 1987 and it is in the deposition of this witness that further security was given by way of equitable mortgage by H.S. Barar, defendant No. 4. Property No. D-112, Malviya Nagar Extension was under mortgage with the plaintiff even prior thereto in respect of the account of M/s. Orchids Bloom and when the name of M/s. Orchids Bloom was changed to M/s. Orkids, fresh mortgage was executed in this account as well and the documents in respect of that mortgage are Ex. PW-1/3, PW-1/4 and PW-1/5. Ex. PW-1/4 is the affidavit dated 10th March, 1981 sworn by said Major H.S. Barar and in para No. 3 of this affidavit it is averred that he creates equitable mortgage of the said property by deposit of title in favour of the plaintiff as a guarantor for the loan/advance sanctioned to M/s. Orkids. Ex. PW-1/5 is the certified copy of the perpetual lease deed dated 19th December, 1972 in respect of property No. D-112, Malviya Nagar Extention deposited with the plaintiff.
5. In my view, nature of said Suit No. 1179/83 and the judgment passed therein for recovery of the money claimed, have no relevance for deciding the issue on hand and what is to be seen is whether any equitable mortgage in regard to said property No. D-112, Malviya Nagar Extension was created by judgment debtor No. 4 (defendant No. 4) in favour of the decree holder as alleged. As is manifest from the deposition of PW-1, affidavit Ex. PW- 1/4 and the operative portion of the judgment dated 5th February, 1987 referred to above, Major H.S. Barar, judgment debtor had created equitable mortgage by deposit of title deed in regard to the said property in favour of the decree holder sometime in March 1981. It is not legally open to the objectors to assail the legality of that equitable mortgage on the ground aforementioned as they were not the parties to the said suit.
6. In Vannarakkal Kallalathil Sreedharan's case (supra) wherein the said decisions reported in AIR 1935 Madras 872, (28) AIR 1941 Bombay 198, AIR (30) 1943 Bombay 145 and AIR 1952 Travancore-Cochin 466 were taken note of, the facts were these. 80 cents of land was agreed to be sold by Sarojini Ramakrishnan in favour of the appellant under an agreement for sale dated October 9th, 1978 and before the sale deed was executed on 23rd November, 1978, said land came to be attached under Order xxxvIII Rule 10 CPC by a third party in execution of a decree. Thus, the question which fell for determination before the Supreme Court was whether that sale would prevail over the attachment. While dealing with that question in para No. 9 of the report, it was held :-
"In our opinion, the view taken by the High Courts of Madras, Bombay, Calcutta and Travancore-Cochin in the aforesaid cases appears to be reasonable and could be accepted as correct. The agreement for sale indeed creates an obligation attached to the ownership of property and since the attaching creditor is entitled to attach only the right, title and interest of the judgment-debtor, the attachment cannot be free from the obligations incurred under the contract for sale. Section 64 CPC no doubt was intended to protect the attaching creditor but if the subsequent conveyance is in pursuance of the agreement for sale which was before the attachment, the contractual obligation arising therefrom must be allowed to prevail over the rights of the attaching creditor. The rights of the attaching creditor shall not be allowed to override the contractual obligation arising from an antecedent agreement for sale of the attached property. The attaching creditor cannot ignore that obligation and proceed to bring the property to sale as if it remained the absolute property of the judgment-debtor."
7. This decision, however, does not help the objectors for two reasons. First, that the equitable mortgage of the said property was created by judgment debtor No. 4 in favour of the decree holder-bank much before the execution of the agreement to sell dated 12th August, 1986 in favour of the objectors, by him. Second, that admittedly no sale deed has been executed in respect of the property till date by judgment debtor No. 4 in favour of the objectors.
8. In the decision in Ishar Dass Malhotra Vs. Dhanwant Singh & Ors., it was held by a Division Bench of this Court that an equitable mortgage by deposit of title deed is like any other mortgage; that there is a transfer of interest in the property mortgaged to the mortgagee and, therefore, the subsequent purchaser cannot have priority over such a mortgage created before the sale. Needless to say that the objection that the said property is exempted from attachment under Section 60 CPC is not legally available to the objectors they being not the judgment debtors. Considering the ratio in Ishar Dass Malhotra's case (supra) and the aforesaid discussion, the attachment in question must be held to be perfectly valid and the objections, therefore, deserve to be dismissed being without merit.
9. In the result, EA No. 206/89 is dismissed.