R SINGARIAH CHETTY Vs. CHINNABBI ALIAS MUNI REDDI

JUDGEMENT

(1.) This appeal arises out of a suit on a mortgage-bond executed by the guardian of defendants Nos. t and 2 in favour of plaintiffs. Before its institution, the mortgaged property had been brought to sale by fifth defendant in execution of decree obtained by him against defendants Nos. 1 and 2 (Original Suit No. 69 of 1914 on the file of the District Munsif of Tirupati) and purchased by defendants Nos. 3 and 4. Toe 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 mainatainable. 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 Aiyar on behalf of third defendant, the present appellant, that we have to deal.

(2.) The main objection is based on Order XXI, Rule 63, Civil Procedure Code, and was considered and rejected by the District Munsif on issue No. 2.

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