MAROTHI Vs. MT. SONA BAI

JUDGEMENT

(1.) MACNAIR , Offg. J.C. 1. Certain property was attached in execution. An objection was filed on the strength of a lease executed by the judgment-debtor. The property was ordered, to be sold subject to the lease rights. The suit out of which this appeal arises was instituted for a declaration that the property is liable to be attached and sold without reservation of any right in favour of defendant 1 as the lease was a fraudulent transaction.

(2.) IT was urged in the lower appellate Court that such a suit did not lie. In Govind v. Dheklu A.I.R. 1923 Nag. 282. It was held that an order in an objection case allowing the claim of a mortgagee was conclusive and debarred the decree-holder purchaser from pleading that the mortgage was without consideration and was not properly attested. If this is the case, it is clear that Clause 21, Rule 63, Schedule 1, Civil P.C., allows the institution of a suit to establish the invalidity of a mortgage. It is not contested that the result would be the same when the objection, as in this case, refers to a lease. The judgment in Wamandhar v. Kampta Prasad A.I.R. 1926 Nag. 423 is, I find, in accordance with the head note which is as follows:

(3.) THE decision of the question whether the plaintiff was entitled to bring the suit I am considering entails a decision of the question which of the two rulings I have cited is correct. It is necessary then to refer the latter question to a Bench. I frame the question thus: When a claim that attached property should be sold as subject to a mortgage or lease has been decided by an executing Court, do the provisions of Clause 21, Rule 63, Schedule 1, Civil P.C., apply to the decision?