Rajamannar, J. - (1.)THIS is an appeal by the plaintiff against the decree of the Court of the Subordinate Judge of Madura dismissing his suit for the recovery of Rs. 5,100 by the enforcement of a charge on the properties mentioned in the plaint schedule. These properties originally belonged to one Mecca Meera Levvai Rowther. He had executed in favour of one Srinivasa Ayyar, two mortgages on 21st December, 1910 and 25th September, 1912, for Rs. 2,000 and Rs. 3,000 -respectively. The properties in suit and other properties were purchased by the plaintiff in 1920, from one Sikandar Rowther to whom the original owner had alienated these and other properties in 1918.
(2.)ONE Syed Muhammad Rowther, a creditor of the original owner, brought a suit O.S. No. 24 of 1917 on the file of the Court of the Subordinate Judge of Madura to recover an amount due to him and obtained an attachment before judgment of the properties of the debtor including the suit properties, which were actually attached in March 1917. Eventually he obtained a decree in the suit and his legal representatives brought the attached properties to sale and purchased them themselves on 8th April, 1929. The purchase by the plaintiff was therefore after this attachment before judgment. When the auction purchasers proceeded to obtain delivery of the properties, they were obstructed by the plaintiff, who was in possession under his purchase from Sikandar.
Srinivasa Ayyar obtained a decree for sale in O.S. No. 146 of 1922, Sub -Court, Madura, on the foot of the two mortgages in his favour above -mentioned and assigned this decree to one Narayanaswami Ayyar. There was also a mortgage in favour of one Nagappa Chettiar executed by the original owner in 1917. The plaintiff claiming to have discharged these encumbrances urged in the execution proceedings for delivery that in any event he was entitled to remain in possession till he was reimbursed in the amount paid by him to discharge the encumbrances subsisting on the property. The lower Court held that the purchase by the plaintiff could not prevail against the auction purchasers but directed the purchasers to pay to the plaintiff the amount alleged to have been paid by him in discharge of the mortgages on the property, before they obtained possession. The auction purchasers preferred an appeal to this Court, C.M.A. No. 465 of 1930. Madhavan Nair and Jackson, JJ., agreed with the contention on behalf of the auction purchasers that they were entitled to the possession of the properties unconditionally because the mortgages which the plaintiff claimed to have discharged were simple mortgages and not usufructuary mortgages. They therefore set aside the order of the lower Court and ordered that possession of the properties should be delivered to the appellants before them free from the resistance of the present plaintiff. With regard to his claim that he was entitled to be paid the amount which went to discharge the mortgages, the learned Judges observed as follows:

Mr. Seetharama Rao argues that as the respondent has discharged various mortgages the appellants may be asked to pay him in these very proceedings the amount of the mortgages discharged by him; but we think that as the respondent has no title to remain in possession of the property and as the appellants' right is undisputed he should enforce his right to recover the mortgage amount, by other appropriate proceedings. However, to safeguard his rights we will declare and this is not' objected to by the appellants that the respondent will have a charge on the mortgaged properties with respect to the amount paid for the discharge of the various mortgages but in any proceedings -which he may take to enforce his rights it is only right to say that the appellants will be entitled to raise whatever objections they might have raised on the date when they became the purchasers of the equity of redemption in the properties on 8th April, 1929.

The decretal order gives effect to this direction and contains a declaration that the plaintiff do have a charge for the amounts paid by him to discharge the various mortgages.

(3.)THE date of the judgment and decree of the High Court in the C.M.A. was 28th August, 1931. In 1937, the properties in suit were purchased by the present respondent from the auction purchasers. On 13th August, 1943, the plaintiff instituted the suit out of which this appeal arises for the recovery of a sum of Rs. 5,100 (to which amount he confined his claim) by enforcement of the charge thus declared by the High Court against the respondent who had become the purchaser of the properties.