KANDADAI NARASIMHACHARIAR Vs. RAGHAVA PADAYACHI

JUDGEMENT

(1.) The question in this appeal is whether an order passed dismissing an objection preferred to an attachment under Order 21, Rule 58 of the Civil P. C., no suit having been filed under Rule 63, operates beyond proceedings in execution of the particular decree.

(2.) On the 13 September, 1919, Perianna Padayachi (the father of defendants 1 to 3), the fourth defendant and one Sengeni Padayachi executed a mortgage in favour of the plaintiff. Some of the mortgaged properties belonged to Perianna Padayachi, some to the fourth defendant and some to Sengeni Padayachi. On the 7 July, 1939, the mortgagee sued to recover the amount then due on the mortgage. With interest it came to Rs. 1,998. The properties owned by Sengeni Padayachi were sold in public auction by the revenue authorities for the recovery of land revenue and were purchased by the mortgagee, subject to his mortgage. Credit for the amount paid by the mortgagee for these properties was given to the mortgagors.

(3.) In original suit No. 183 of 1932 of the Court of the District Munsiff of Cuddalore the mortgagee obtained a decree on a mortgage of other property executed by the fourth defendant and Sengeni Padayachi. The hypotheca was sold, but the proceeds were not sufficient to pay in full the mortgagee, who was granted a personal decree for the balance. In execution of this decree the mortgagee attached as the separate property of the fourth defendant items 11 to 14 of the properties covered by the mortgage to the plaintiff of the 13th September, 1919. The fourth defendant's brothers, defendants 7 to 9, objected to the attachment. They said that these particular properties belonged to the joint family of which they and the fourth defendant were members. The objection prevailed, but the mortgagee did not file a suit under the provisions of Order 21, Rule 63 of the Civil P. C. to challenge this finding because he had obtained full satisfaction of the personal decree passed in Original Suit No. 183 of 1932 out of the properties owned by Sengeni Padayachi. Consequently the attachment came to an end.