T VENKATA SEETHARAMAYYA Vs. VVENKATARAMAYYA

JUDGEMENT

(1.) IN this ease the plaintiff is a person holding a mortgage from the third defendant over some property belonging to him; the first and second defendants obtained a money decree against the third defendant and attached the mortgaged property. After the attachment the plaintiff instituted a suit for sale on his mortgage but impleaded only the third defendant as a party and obtained a decree for sale. The defendants Nos. 1 and 2 then made an application to bring the property to sale in pursuance of their attachment. The plaintiff then put in a claim petition stating that the third defendant had no longer any saleable interest in the property as he had brought it to sale in pursuance of his mortgage decree. The claim was disallowed and he instituted the present suit for a declaration that the first and second defendants are no longer entitled to bring the property to sale. An attaching creditor is one of the classes of persons that are entitled to redeem a mortgage under Section 91 of the Transfer of Property Act. A private alienation by the mortgagor after attachment would admittedly be invalid as against an attaching creditor s claims to bring the property to sale in pursuance of his attachment. Section 85; of the Transfer of Property Act requires all parties interested in the property to be made parties to a suit for sale. Section 91 recognises an attaching creditor as one who by virtue of his interest in the property is entitled to redeem the mortgage. There can be no doubt that, the plaintiff ought to have made the attaching creditors, defendants Nos. 1 and 2, parties to his suit for sale and as he failed to do so, the sale is not binding on them, and they are entitled to bring the properties to sale under their attachment. The decision in Ghulam Hussain v. Dina Nath (1901) I.L.R. 23 All. 467 is in accordance with this view. The fact that there was an order for sale in that case made no difference in the rights of the attaching creditor. A mere order for sale does not increase the interest in the property which the attaching creditor has by virtue of his attachment.

(2.) THE Second Appeal must be dismissed with costs.