Security deed without charge does not create mortgage rights, while appellate relief may be moulded under Order XLI Rule 33 CPC.

A security deed that merely undertook not to alienate property until satisfaction of a decree did not create a charge, because it contained no express or implied obligation to pay the decretal amount out of that property. As the earlier decree was only a simple money decree and not one enforcing a charge or mortgage, the purchaser in execution acquired no puisne mortgage rights under the deed. On the procedural issue, the appellate court could invoke Order XLI Rule 33 CPC in the special circumstances of the case to mould relief even though the respondent had not appealed.

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Issues: Whether the security deed executed in favour of the court created a charge over the property so as to confer mortgage rights on the purchaser, and whether the appellate court could invoke Order XLI Rule 33 of the Code of Civil Procedure, 1908 to disturb the decree in the absence of an appeal by the respondent.

Analysis: The deed was examined as a whole and was found to contain only an undertaking not to alienate the property until discharge of the decree. It did not expressly or by necessary implication create an obligation to pay the decretal amount out of the property, and therefore did not amount to a charge. Since the decree in the earlier suit was only a simple money decree and not a decree enforcing any charge or mortgage, the purchaser in execution of that decree did not acquire rights as a puisne mortgagee. On the procedural objection, the Court held that the appeal was still open and that the High Court was justified, in the special circumstances of the case, in exercising its discretionary power under Order XLI Rule 33 to mould the relief.

Conclusion: The security deed did not create a charge, the appellant acquired no mortgage rights under it, and the High Court was correct in dismissing the appellant's suit while sustaining the respondent's claim.

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