R SINGARIAH CHETTY Vs. CHINNABBI ALIAS MUNI REDDY

JUDGEMENT

(1.) This appeal arises out of a suit on a mortgage bond executed by the guardian of defendants 1 and 2 in favour of plaintiffs. Before its institution the mortgaged property had been brought to sale by 5th defendant in execution of a decree obtained by him against defendants 1 and 2 (O.S. No. 69 of 1914 on the file of the District Munsiff of Tirupati) and purchased by defendants 3 and 4. The latter opposed the suit alleging (1) that the suit mortgage was only a fictitious document without consideration and (2) that the suit was otherwise not maintainable. The first defence, though successful in the court of first instance, was found against by the Subordinate Judge in appeal; and we are not now concerned with it. The Subordinate Judge however, in giving a decree for plaintiffs omitted to consider the objections to the maintainability of the suit and it is with these, which have been pressed on us by Mr. Ananthakrishna Iyer on behalf of 3rd defendant, the present appellant that we have to deal.

(2.) The main objection is based on Order 21, Rule 63 C.P.C. and was considered and rejected by the District Munsiff on isssue 2.

(3.) The facts are these: Prior to O.S. No. 69 of 1914, 5th defendant had instituted another suit against defendants 1 and 2, O.S. No. 872 of 1913, and had effected an attachment before judgment of the suit property under Order 38, Rule 6. Plaintiffs preferred a claim based on their mortgage. This was dismissed. Thereupon plaintiffs filed a suit, O.S. No. 919 of i9J4 for a declaration of their mortgage rights and for a declaration that the same would not be affected by the attachment.