B. Dayal, J. - (1.)This Second Appeal by the defendants has been referred to a Division Bench by a learned single Judge of this Court as an important question relating to the validity of the attachment was to be decided. The facts of the case are not in dispute and may be stated briefly as follows : One Pt. Babulal Misra (defendant No. 1) was the owner of house No. 86/155 Raipurwa, Kanpur city. L. Srikrishna Gupta and L. Mahabir Pd. Gupta (defendants Nos. 2 and 3) filed a suit (suit No. 174 of 1950) for realisation of money against defendant No. 1. On the 2nd of May, 1950 they applied for attachment before judgment of the house in question. The trial court, on the said application, passed the following order: "Issue notice and attach meanwhile". This is Ext. 3 on the record. On the 3rd of May, 1950 notice was issued against defendant Pt. Babulal Misra prohibiting him from alienating the property (Ext. 4). On the same date, a warrant of attachment was also issued (Ext. B -9) specifying the details of the property and directing the Amin to effect an attachment. On the same date, the Amin went to the spot and according to his report (Ext. B -8) he announced attachment by beat of drum and effected attachment "according to law". In this report he does not specify what he did to effect attachment "according to law" beyond announcing attachment by beat of drum. Along with this report, he submitted to the court (Ext. B -7) a description of the house with its boundaries etc. The notice (Ext. 4) which had been issued to the defendant on the 3rd of May, 1950 was returned unserved on the 13th of July, 1950 as the defendant was not available and the house was locked and it was not known when the defendant would return (vide Ext. 2 report of the process server). Nothing further seems to have been done in pursuance of this application for attachment before judgment. In this situation, Pt. Babulal Misra probably never knew that the house had been attached before judgment and executed a mortgage deed of the house on the 16th of July, 1953 in favour of the plaintiffs respondents. After execution of the mortgage the house was put up for sale in execution of the money -decree in suit No. 174 of 1950 which L. Sri Krishna Gupta and L. Mahabir Pd. Gupta obtained afterwards against Pt. Babulal Misra. This property was purchased by the decree -holders on the 18th of December, 1956 in execution case No. 10 of 1954. The present plaintiffs mortgagees then filed the present suit on the basis of this mortgage for realisation of the mortgage money along with interest etc. from defendant No. 1 Pt. Babulal Misra and also impleaded L. Sri Krishna Gupta and L. Mahabir Pd. Gupta as subsequent transferees of the property on the allegation that at the time of their purchase in the year 1956, they had full knowledge of the existence of the mortgage and were bound by it.
(2.)Pt. Babulal Misra admitted the plaintiff's case and denied any attachment before judgment in suit No. 174 of 1950. But the other two defendants (the appellants) plead that the property had already been attached before judgment in 1950 and hence the mortgagees could not claim a right superior to that of the defendants who had purchased the mortgage property in execution of their decree and had acquired a right under the attachment which was prior to the mortgage. On behalf of the plaintiffs, it was pleaded that (i) there was no valid attachment order under Order 38, Rule 5 C. P. C. and (ii) that in any case, the property was not, in fact, attached according to law and hence defendants Nos. 2 and 3 could not claim any benefit out of that attachment.
(3.)The trial court held that there was a valid attachment although there may have been some irregularities and that the plaintiffs could not claim a right superior to that of defendants Nos. 2 and 3. The court, therefore, granted a simple money decree against defendant No. 1 and dismissed the suit with costs against defendants Nos. 2 and 3. The plaintiffs filed an appeal, which was heard by the IVth Addl. Civil Judge, Kanpur. The learned Judge differed from the trial court, allowed the appeal and decreed the suit with costs against all the defendants. Defendants Nos. 2 and 3, the auction purchasers have now come up in second Appeal.