R FISHER Vs. AMARUNACHALLAM CHETTIAR

JUDGEMENT

(1.) The order on the claim proceedings which the plaintiff now seeks to set aside declared according to the plaint in the suit, that the plaintiff's mortgage has been discharged.

(2.) The plaintiff does not in his suit seek to have the property released of the attachment, but to have it declared that this order is wrong and that his mortgage is subsisting. The mortgagor is a party both to the suit and the claim proceedings though she probably contests neither and the effect of granting the declaration asked for by the plaintiff will be to establish the mortgage as against her as well as against the attaching creditor.

(3.) The case is distinguishable from Krishna sami Naidu V/s. Somasundaram Chettiar 30 M. 335 in which the claimant sought to get rid of the order of attachment on property which he claimed to be his own.