K. BALACHANDRAN Vs. A.M. MUTHAYYAN MUDALIAR

JUDGEMENT

(1.) This second appeal is before us on a reference made by Ismail J. The question raised before the learned Judge was regarding the construction and effect of Sec. 64 of the Code of Civil Procedure. The Respondent in the second appeal obtained a money decree in Original Suit No. 516 of 1952 on the file of the Court of District Munsif, Tindivanam, and after the decree was transferred to the Court of District Munsif, Nagapattinam, he attached the suit property belonging to the judgment debtors in that case. The attachment was effected on 4th December 1959. While the attachment was subsisting, the money -decree -holder (Respondent in the second appeal took a mortgage of the suit property from the judgment -debtors in the money decree for a sum of Rs. 1,500 but this mortgage was not in discharge of the money decree that he had obtained in Original Suit No. 516 of 1952 but in dis charge of several other debts due to him.

(2.) Subsequent to the abovesaid mortgage in favour of the Respondent, the judgment debtors in the money suit effected two other mortgages, one dated 5th August 1962 and the other dated 15th August 1962 in favour of third parties.

(3.) The property was brought to sale in pursuance of the money decree (in Original Suit No. 516 of 1952). The proclamation for the sale was made on 8th June 1966 and it was ultimately sold on 25th July 1966 the auction purchaser being the Appellant before us. In the proclamation it is mentioned that the mortgage dated 19th January 1961 in favour of the Respondent herein is subsisting and the proposed sale in Court auction was only subject to the said mortgage. It is further mentioned that the two subsequent mortgages, one dated 5th August 1962 and the other dated 15th August 1962, are invalid as they have been effected after the attachment.