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Judgment
Sundaram Chetty, J.—These miscellaneous appeals arise out of two orders of remand passed by the learned Subordinate Judge of
Trichinopoly in two connected appeals on his file. When these appeals came on for hearing the learned advocate for the respondents took the
preliminary objection that the appeals did not lie. In order to appreciate the nature of the suits and of the preliminary objection raised before us. it is
necessary to state a few facts. One Arumugam was owner of the suit properties. On the 5th March, 1912, he hypothecated these properties in
favour of the plaintiff''s husband.. The plaintiff filed O.S. No. 686 of 1922 on the file of the District Munsif''s Court of Ariyalur after her husband''s
death to recover the money due on the mortgage of the 5th March, 1912. To that suit she made Arumugam, the mortgagor, as defendant. After
obtaining the usual mortgage decree, she had the properties sold in execution of the decree and herself became the purchaser, and the sale
certificate Ex. A was issued in her name on the 15th March, 1924, On 10th May, 1924, she Sought to obtain delivery of the properties in
execution of the sale certificate. Then she was obstructed by the defendants who claimed to have purchased these properties from the Government
under circumstances which would be described later on. Being obstructed in thus obtaining possession she filed these two suits, one against the
defendant who were in possession of some of the properties included in the sale certificate, but which were claimed by them as having been
purchased from the Government, the defendants in the other suit being in possession of the other property covered by the sale certificate which
they had purchased from the Government. The defendants pleaded that the Government ought to have been made party-defendant in O.S. No.
685 of 1922, and that as they derived their title through the Government they would be entitled to redeem the plaintiff''s mortgage. The learned
District Munsif raised issue No. 3 as follows: ""Is the plaintiff''s mortgage redeemable as contended?"" The learned District Munsif who tried the suits
was of opinion that the possession of the Government was only that of an attaching, creditor and consequently the Government was not entitled to
be made party to the suit brought on the mortgage, and in any event could not claim any right to redeem plaintiff''s mortgage at present. He
accordingly decreed the plaintiff''s suit for possession unconditionally. The defendants preferred appeals to the Lower Appellate Court, and the
learned Subordinate Judge of Trichinopoly came to the conclusion that the defendants were entitled to redeem the plaintiff''s mortgage as they had
not been made parties to the prior suit O.S. No. 685 of 1922; he modified the decree of the Trial Court and declared that the defendants were
entitled to redeem the plaintiff, and to find out the exact amount payable on redemption, he remanded the suits to the Trial Court for disposal
according to law. It is against the order of remand passed in each of these two connected appeals that the plaintiff has preferred these two
miscellaneous appeals.
The learned advocate for the respondents took the preliminary objection that in these circumstances these miscellaneous appeals do not lie. The
appeals have been preferred under Order 43, Rule 1, Clause (u) on the footing that the orders of remand were passed by the Lower Appellate
Court under Order 41, Rule 23, Civil Procedure Code. The learned advocate argued that it should not be taken that the Trial Court decided any
preliminary issue nor could the Appellate Court be said to have reversed the finding of the Trial Court on such a preliminary issue. He accordingly
contended that the present must be taken to be a case where the Lower Appellate Court remanded these suits under its inherent jurisdiction, and
he argued that, having regard to the decisions which hold that no appeal would lie against orders of remand passed under the inherent jurisdiction
of Courts, these appeals are not maintainable. We are unable to agree with that contention. As we read the pleadings and also the proceeding''s in
the Trial Court, we understand that the 3rd issue was intended to raise the question whether the plaintiff was entitled to an unconditional decree for
possession, and also whether the defendants would be entitled to redeem, in which case the plaintiff would be entitled to possession only if the
defendants failed to redeem. We take that to be the real meaning and significance of the third issue framed in the suit. In this view, the Lower
Appellate Court was entitled to come to its own finding upon that preliminary issue, and as the Lower Appellate Court held that the defendants
would be entitled to redeem, we think that on its reversing the finding of the Trial Court on this preliminary issue it was entitled to remand the suit
for disposal on the other points under Order 41, Rule 23, Civil Procedure Code. We are supported in this view by the decision of the Full Bench
in Raman Nayar v. Krishnan Namibudripad ILR (1922) M. 900 : 43 M.L.J. 354. We accordingly overrule the preliminary objection.
Coming to the merits, the learned advocate for the appellant argued that the present is the case of an attaching decree-holder not having been
made a party to the prior suit upon the mortgage.. He drew our attention to the recent decision of a Full Bench of this Court in Subramaniam
Chettiar v. Sinnammal ILR (1930) M. 881 : 59 M.L.J. 634 where the Full Bench held that the mere circumstance that an attaching decree-holder
was not made a party to a suit upon a mortgage is not a ground for compelling the purchaser of the properties in execution of the mortgage decree
to be redeemed by the attaching decree-holder. We may state that the learned Government Pleader who appeared for the respondents did not,
having regard to the decision of the Full Bench, contest that proposition of law. The ground of decision by the District Munsif was that the position
of the defendant was that of an attaching decree-holder merely. In paragraph 13 this is what the learned District Munsif said;
All these circumstances go to show that the interest of the Government was only that of an attaching creditor and that the property did not vest in
the Government.
We must now take it that if the interest of the Government was only that of an attaching creditor, it would follow from the recent decision of the
Full Bench that the District Munsif''s view should be upheld.
But it was argued on behalf of the respondents by the learned Government Pleader that the position of the Government in such a case as this is
not simply that of an attaching creditor. Before examining this aspect of the case it is necessary to mention a few further facts to make the further
discussion intelligible. It would appear that the mortgagor Arumugam was alleged to have committed the offences of robbery and dacoity and that
he evaded service of summons. The properties of the absconder Arumugam--the Immovable properties now in dispute--were accordingly
attached under the provisions of the Criminal Procedure Code. Ex. I, dated the 19th August, 1919, is the order of attachment. Subsequently a
receiver was appointed on the 22nd September, 1919, and in 1923 the defendants became the purchasers of the properties from the Government.
On these facts it was argued on behalf of the Government that, having regard to the provisions of Sections 88 and 89 of the Criminal Procedure
Code, it should be taken that when the proclaimed person did not appear within the time specified in the proclamation, the property under
attachment had come at the disposal of the Government; and accordingly the Government took possession of the properties and subsequently sold
them to the respective defendants in these suits. It was argued in the first instance that the properties must be taken to have become vested in the
Government as owners. The learned Government Pleader also argued that the Government became the absolute owner of the income from these
properties after the period fixed in Section 88, Clause (7). Finally he argued that in any event the position of the Government should be taken to be
that--or analogous to that--of a receiver in possession of the properties and entitled to rents and profits thereof and that in such cases the
Government have got sufficient interest in the properties as entitled them to redeem the prior mortgage. Our attention was drawn to the decisions in
Golam Abed v. Toolseeram Bera ILR (1883) C. 861 and The Secretary of State for India in Council Vs. Rangasami Iyengar and Others, in
support of these propositions. The learned advocate for the appellant on the other hand argued that all that the Government would be entitled to
u/s 88 (?) would be to keep the properties as agent of the: absconder and that after the expiry of the two years their rights--whatever they were-
came to an end and the properties continued to be the properties of the absconder. For the purpose of disposing of these appeals, we do not think
it necessary for us to come to a definite opinion on the first two questions raised by the Government Pleader on behalf of the respondents in this
case. We are clearly of opinion that the possession of the Government is not merely that of an attaching decree-holder, which was the view taken
by the learned District Munsif. We are also clear that the possession of the Government is not that of an agent of the absconder. An agent holds
property for and on behalf of the principal and not on a title inconsistent with the title of the principal. That surely is not the position of the
Government'' in this case. The Government in the circumstances did not hold the property on behalf of the absconder but as against him. Being of
opinion that the analogy of an agent of the owner does not apply to the case on hand, we proceed to see whether there is any distinction between
the effect of an attachment by a Civil Court and the effect of an attachment under Chapter VI of the Criminal Procedure Code. We are of opinion
that there are some essential differences between an attachment by a Civil Court in execution of a money decree and an attachment contemplated
by Chapter VI of the Criminal Procedure Code. We have to give effect to the words ""the property under attachment shall be at the disposal of
Government"" occurring in Clause (7) of Section 88, in cases where the proclaimed person does not appear within the time specified in the
proclamation. The subsequent clause in our view affirms the view that the Government is not simply an agent of the owner. The clause proceeds to
say, ""but it shall not be sold until the expiration of six months from the date of the attachment"". That, we take it, means, that, when once the
property under attachment is declared to be at the disposal of Government, it would be open to the Government to sell that property. We are of
opinion that it would also be open to the Government to dispose of the property in any other manner; surely it would be open to the Government
to be itself in possession of the property, or to lease the property and receive the income of the property during this period. That being so, the
position is, in our view, at the least analogous to the case where a receiver is appointed for the possession and management, etc, of Immovable
properties. In such a case it seems to us that any suit instituted to enforce any lien or charge by the sale of such properties for which a receiver has
been appointed and of which he is in possession would be defective without the receiver being made a party to it. Our attention was drawn by the
learned Government Pleader to the case reported in Jotindra Nath Chowdhury v. Sarfaraj Mia (l910) 14 C.W.N. 653. There the Court
(Mookerjee and Teunon, JJ.) observes at page 657, that a receiver appointed in the course of a mortgage suit is not a necessary party to a suit by
a creditor of the mortgagor for the enforcement of a purely personal claim against him, but in an action to enforce a lien against a specific property
in which a receiver is interested, he should be made a party. In that case it was further pointed out that, although a receiver is in one sense the
custodian of the property involved in the litigation in which he is appointed, he had such special property therein as to make him the representative
of the rights of the parties in all actions or proceedings affecting the property, and in that character he was entitled to notice in all cases in which
parties would have been entitled to be brought before the Court had there been no receiver. Again, it was held in Paya Matathil Appu v. Kovamel
Amina ILR (1895) M. 151 : 5 M.L.J. 279 that a verumpattom tenant in Malabar claiming under a lease from the ottidar is entitled to redeem the
prior kanom. At page 153 of the report the learned Judges conclude their discussion of the question as follows:
So long as the plaintiff has an interest validly entitling him to possession, he is in a position to redeem.
As already mentioned, it is not necessary for the disposal of this appeal to define the exact nature and scope of the rights derived by the
Government u/s 88, clause 7. We are clear that the interest possessed by the Government is not that of a mere attaching decree-holder. As we
have already stated, it cannot be said that the expression ""property at the disposal of Government"" could with any propriety apply to the case of a
mere attaching decree-holder. Being of opinion that the effect of Section 88 is to create an interest in the property and to entitle the Government to
be in possession of the property, we hold that the Government was a necessary party to the prior suit under Order 34, Rule 1 of the Code. Not
having been made a party, the Government''s right of redemption could not be affect-ed. In this case we have the, further fact that the suit O.S.
No. 685 of 1922 was filed more than two years after the date of the attachment. u/s 89 the position of the Government after the expiry of the two
years would surely be not weaker than it: was before. How far it becomes stronger is not necessary for us to exactly define in this case.
We, therefore, hold that the interest which the Government had in the Immovable properties now the subject of the suits before us was such as
gave them a right to redeem the properties, and the relief given to the defendants by the Lower Appellate Court, to which no objection has been
taken by the respondents by way of cross-appeal, is not open to any legal objection by the plaintiff.
We, therefore, dismiss these miscellaneous appeals with costs (one set in each appeal).