(1.) On 4 February 1929 the plaintiffs instituted a suit to enforce a mortgage against the mortgagors and a large number of persons interested in the equity of redemption. One of such persons was Hiraman Ram. The mortgaged property was, on the day of the institution of the suit, under attachment in execution of a money decree obtained by Hiraman and the appellants who belonged to a joint family. A preliminary decree in the mortgage-suit was passed in March 1931, and a final decree in September of the same year. In the mean while however, on 21st December 1929, the property covered by the mortgage had been put up for sale in execution of the appellants money decree and purchased by the appellants. Two days after this purchase, Hiraman had died.
(2.) No steps were taken to bring on the record of the mortgage-suit his representatives; but in March 1932, in execution of the final decree passed on the mortgage-suit, notice was served on the heirs of Hiraman. No appearance was made on their behalf and the execution of the decree proceeded. A sale was eventually held in execution of the decree, but that sale was set aside on the objection of the mortgagor. The decree-holder again applied for execution and on this application the appellants objected to being impleaded in the execution proceedings. Their objection has been overruled by the Court below. The facts thus stated bring the case clearly within the decision of the Division Bench of the Allahabad High Court in Hoshiar Singh V/s. Gobardhan Das 1934 All 1027. The facts in the present case are even stronger than in that case, where an attempt was made to implead in the execution proceedings of a mortgage-decree, a person who had attached the mortgaged property in execution of a money decree prior to the institution of the mortgage-suit. In the case out of which the present appeal has arisen, it is not even the original attaching creditor whom it is sought to implead in the execution proceedings of the mortgage-decree but persons alleged to be his representatives. In the case before the Allahabad High Court it was held that the attaching creditor was entitled to be discharged from the proceedings in execution of the mortgage-decree, and this case being on all fours with it we propose to pass a similar order directing the appellants to be discharged from array of judgment-debtors in the proceedings in execution of the mortgage- decree. The appeal succeeds and the appellants are entitled to their costs. Civil Revision No. 200 is not pressed and is dismissed without costs. Varma, J.
(3.) I agree.