ROSHAN LAL Vs. LALLU

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for foreclosure on the basis of a mortgage-deed, dated the 30 of August, 1907. It appears that the defendant held a simple money decree, in suit No. 192 of 1898, which was in execution. On the 30 of July, 1907, the property in dispute in this case was attached in execution of the simple money decree; while this attachment was subsisting, the judgment-debtor, on the 30 of August, 1907, executed the mortgage-deed which is the subject-matter of dispute in this appeal. On the 20 of August, 1908, the subsequent mortgagee seems to have made an application to the execution court, praying that his mortgage should be notified. An order of the 14 of November, 1908, passed by the execution court, shows that inasmuch as no objection was preferred, notification was ordered. The property was put up for sale on two Occasions, but those sales were set aside. On the 20 of August, 1909, the property was again put up for sale and was ultimately sold to the attaching decree-holder himself for a sum of Rs. 1,800. The subsequent mortgagee has now brought a suit to enforce the mortgage of the 30 of August, 1907, and, on behalf of the defendants, it was contended that inasmuch as this mortgage-deed had been executed at a time when the attachment under the decree in suit No. 192 of 1898 was in force, the mortgage was invalid and unenforceable as against the defendants.

(2.) The court of first instance held that the attaching decree-holder had in no way been prejudiced by the execution of this mortgage-deed and that the attachment was no bar to the validity of this mortgage.

(3.) On appeal the learned District Judge was of opinion that the plaintiffs were not entitled to enforce their mortgage as against the defendants who have purchased this property execution of a decree under which the property was under attachment at the time when the mortgage-deed was executed.