PRABHALA NARASIMHASOMAYAJULU GARU Vs. MUTTURY SOMAPPA; KOLLURY LAKSHMINARAYANA

JUDGEMENT

(1.) The District Munsif was clearly wrong in thinking that the petitioner lost his rights as mortgagee simply because he attached the surplus sale-proceeds. He is the puisne mortgagee and has a charge over the surplus sale-proceeds in Court after the property was sold at the instance of the prior mortgagee. The proper course was pursued by him when he applied for payment.

(2.) The attachment before judgment made at the instance of the counter-petitioner will not affect the petitioner s rights; Order XXXVIII, Rule 10, of the Code of Civil Procedure is clear.

(3.) It is also difficult to see how the attaching creditor is entitled to rateable distribution, as not only was there no application for execution made by him of the decree, but the money was realised before he attached the property: Arunachellum Chettiar v. Haji Sheik Meera Routher 7 Ind. Cas. 856; 34 M. 25; 8 M.L.T. 226: (1910) M.W.N. 688 and Srinivasa Ayyangar v. Seetharanayyar 19 M. 72; 5 M.L.J. 151.