1926 (7) TMI 1

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.... of the mortgage of January 4, 1888 (Exhibit 28). I will not quote the mortgage in detail, but our construction of it is that it mortgages the share amounting to l/288ths of the mortgagor in the net proceeds of the offerings made by devotees to the Goddess after providing for all the customary expenses of the temple payable out of the funds thus arrived at. We do not think that it gives the mortgagee the right himself to worship the Goddess and to take himself the offerings placed at the foot of the idol. All that the mortgagor is entitled to is this small aliquot share. 3. The custom in this temple, which is similar to the custom obtaining in the main temple at Pandharpur, (which the appellate Court had to consider exhaustively in anoth....

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....enged. 6. The next question arises as to whether, on that custom and on the construction which we have placed on the mortgage deed, the mortgage debt can be enforced by sale and execution. Both Courts below have held that it can be. Prima facie, on the construction which we adopt, the right to receive this fraction of the net proceeds of the offerings conies within Section 60, Sub-section (1), of the Civil Procedure Code. It is, however, alleged that the property falls within proviso (f) as being a right of personal service, and that consequently it cannot be attached or sold. In this particular case, we think that contention is not correct. In our view, all that is mortgaged is the interest in the mortgagor's share in the net balanc....

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....a door which might lead to great injury being caused in the future. In the present case the only practical result will be this. The sale is to be confined to the Utpats themselves, and consequently the mortgagor may either buy in his share at the auction and pay off his mortgagee, in which case no harm is done. Or, alternatively, if he does not do so, he loses henceforth his share in these particular net offerings, and all that will happen will be that there will be one priest less to share in this particular fund. 9. It was next argued that even if the saleable property fell within the meaning of Section 60, then, under the provisions of the Code dealing with the execution of decrees, Court sales can only be by public auction, and it is....