PONNUSAMI PILLAI Vs. SAMU AMMAL

JUDGEMENT

(1.) The appellant claimed either that the attachment should be set aside in its entirety, as the decree was fraudu-lently obtained or in the alternative, that the sale under the attachment should be subject to the mortgage. In either case we think that the claim is covered by Order XXI Rule 58 of the Civil Procedure Code. Rule 62 provides for the recognition of the mortgage. Rule 61 provides for the rejection of the claim. We are unable to accept Mr. Deva Doss s contention that the Code does not contemplate the rejection of a claim of a mortgagee as such; the decision in Nemagauda v. Paresha (1897) I.L.R 22 B. 640 shows, that claims founded on mortgages are as much within the rule as any other claim. The learned Counsel for the appellant has quoted no cases to the contrary : the decision Bhiku v. Shujat Ali (1901) I.L.R. 29 C. 25 refers to the question of possession being disturbed after sale : that has no bearing on the present question. Moreover the language of Article 11 of the Limitation Act shows that orders refusing to recognise mortgages are within the article.

(2.) Mr. Deva Doss s contention that as there was no investigation, the one year rule does not apply comes too late in the day. The language of Article 11 in the new Act is more comprehen-sive than that of the previous Act and that has been construed in this Court as covering orders after full investigation as well as orders passed on default. We entirely agree with these decisions. See Narasimha Chetty v. Vijiappa Nainar (1897) I.L.R 22 B. 640 and Subba Aiyar v. Subba Aiyar (1915) 31 I.C. 205.

(3.) The second appeal must be dismissed with costs.