KANDADAI NARASIMHACHARIAR Vs. RAGHAVA PADAYACHI

JUDGEMENT

(1.) THE question in this appeal is whether an order passed dismissing an objection preferred to an attachment under Order 21, Rule 58 of the Code of Civil Procedure, no suit having been filed under Rule 63, operates beyond proceedings in execution of the particular decree.

(2.) ON the 13th September, 1919, Perianna Padayachi (the father of defendants 1 to 3), the fourth defendant and one Sengeni Padayachi executed a mortgage in favour of the plaintiff. Some of the mortgaged properties belonged to Perianna Padayachi, some to the fourth defendant and some to Sengeni Padayachi. On the 7th July, 1939, the mortgagee sued to recover the amount then due on the mortgage. With interest it came to Rs. 1,998. The properties owned by Sengeni Padayachi were sold in public auction by the revenue authorities for the recovery of land revenue and were purchased by the mortgagee, subject to his mortgage. Credit for the amount paid by the mortgagee for these properties was given to the mortgagors.

(3.) IN the present suit defendants 7 to 9 again advanced the plea that items 11 to 14 belonged to their joint family, but the District Munsiff held against them. He also held that the order passed on the objection raised by them in the execution proceedings arising out of the personal decree obtained in Original Suit No. 183 of 1932 did not disentitle the mortgagee to a mortgage decree in respect of items 11 to 14. On appeal by defendants 7 to 9 the Subordinate Judge agreed with the District Munsiff that items 11 to 14 belonged to the fourth defendant in his own right, but found that the District Munsiff erred in holding that the claim order did not operate as a bar to the suit to this extent. The decision of the Subordinate Judge on this question was in accordance with the judgment of this Court in Singariah Chetty v. Chinnabbi, (1920) 40 M.L.J. 7 :, I.L.R. 44 Mad. 368. The mortgagee then appealed to this Court, but the appeal was dismissed by Somayya, J., as he was also bound by the decision in Singariah Chetty v. Chinnabbi, (1920) 40 M.L.J. 7 :, I.L.R. 44 Mad. 368. The learned Judge doubted, however, the correctness of the judgment in that case and he gave the plaintiff leave to appeal under Clause 15 of the Letters Patent. Hence the present appeal.