1. This appeal arises out of a suit on a mortgage bond executed by the guardian of defendants 1 and 2 in favour of plaintiffs. Before its institution the mortgaged property had been brought to sale by 5th defendant in execution of a decree obtained by him against defendants 1 and 2 (O.S. No. 69 of 1914 on the file of the District Munsiff of Tirupati) and purchased by defendants 3 and 4. The latter opposed the suit alleging (1) that the suit mortgage was only a fictitious document without consideration and (2) that the suit was otherwise not maintainable. The first defence, though successful in the court of first instance, was found against by the Subordinate Judge in appeal; and we are not now concerned with it. The Subordinate Judge however, in giving a decree for plaintiffs omitted to consider the objections to the maintainability of the suit and it is with these, which have been pressed on us by Mr. Ananthakrishna Iyer on behalf of 3rd defendant, the present appellant that we have to deal.
2. The main objection is based on Order 21, Rule 63 C.P.C. and was considered and rejected by the District Munsiff on isssue 2.
3. The facts are these: Prior to O.S. No. 69 of 1914, 5th defendant had instituted another suit against defendants 1 and 2, O.S. No. 872 of 1913, and had effected an attachment before judgment of the suit property under Order 38, Rule 6. Plaintiffs preferred a claim based on their mortgage. This was dismissed. Thereupon plaintiffs filed a suit, O.S. No. 919 of i9J4 for a declaration of their mortgage rights and for a declaration that the same would not be affected by the attachment.
4. This suit (O.S. No. 919 of 1914) was eventually dismissed. The plaintiffs were first granted leave to withdraw it conditionally on payment of the costs of defendants; but as they failed to do this within the time allowed, the suit stood dismissed.
5. Appellants contend that on the dismissal of this suit, the order on the claim petition became conclusive under Order 21, Rule 63; and that the result is to preclude plaintiffs from enforcing their mortgage against the suit property under any circumstances whatever.
6. It has been held by a Full Bench of this Court in Prasada Nayudu v. Viraya I.L.R(1918) . Mad. 849 that Order 21, Rule 63 applies to orders on claims preferred to property attached before judgment; and if appellant had purchased the property in execution of the decree in original suit No. 872 of 1913, there could be no room for doubt. This is, of course, a suit to enforce the mortgage not to contest the order on the claim petition under Order 21, Rule 63. But that makes no difference. If plaintiffs are concluded from setting up their mortgage in connection with any proceedings taken against the property in pursuance of O.S. No. 872 of 1913--and this effect, at least must be given to the word ' conclusive ' in Rule 63--then it would be ridiculous to contend that they might nevertheless enforce it against a purchaser of the property in execution of the decree, vide Sadasiva Aiyar, J. in Velu Padayachi v. Arumugam Pillai (1919) 38 M.L.J. 397. Mr. Padmanabha Aiyengar, however for plaintiffs, seems to distinguish the case on the ground that appellant purchased in execution of another decree altogether, and that the order on the claim petition is only conclusive as regards the parties to the same and for the purpose of the suit or execution in connection with which the claim was preferred. The correctness of this argument of course depends on the meaning to be attached to the word ' conclusive ' in Rule 63 of Order 21.
7. On behalf of respondents we are referred to Umesh Chunder v. Raj Bullubh Sen I.L.R. (1882) Gal. 279, Ibrahim Bhai v. Kabulla Bhai I.L.R(1888) . 13 Bom. 72 and Kamini Kant Roy v. Ram Nath Chuckerbutty I.L.R.(1893) Cal. 265. The first of these certainly appears to be authority in respondents' favour. The learned Judges say ' The finding of the court in the execution department that the sale was invalid, only meant that the sale was invalid as against the judgment creditor, and as against any purchaser who might purchase at a sale held in execution follo wing that attachment.' The other two cases have no direct bearing on the point. In Kamini Kant Roy v. Ran Nath Roy Chuckerbutty I.L.R(1893) . Cal. 265 the learned Judges only considered Sections 13 and 373 of the old C.P.C. not Section 283 which corresponds to Order 21, Rule 63. In the Bombay case the decision turned on the necessity of bringing a suit to contest a claim order on an attachment which was raised. So also in a case of this court, Gollampalli Subbayya v. Snnkara Venkataratnam (1917) M.W.N. 151 in both these cases the learned Judges may be said to discuss the matter as if the effect of the claim order did not go beyond the proceedings in connection with which it was passed; but the dominating factor of their decisions is the release or withdrawal of the attachment.
8. On the other hand we are referred to a decision of this Court (Ramaswamy Chetty v. Alagiri Chetty (1914) 27 I.C. 800, which is just as strong an expression of opinion as Umesh Chunder Roy v. Raj Bullubh Sen I.L.R(1882) . Cal. 279 but the other way. The learned Judges say: 'The statutory suit under Order 21, Rule 63 is to establish the right which the attaching plaintiff claims in the property in dispute. This, in our opinion, is the right to attach the property in question as the property of the defendant whenever it may be his interest to do so, and the effect of not suing would be to debar him from claiming to attach such property at any future time.'
9. As far as the cases go, we have therefore practically a decision of our court against one of the Calcutta High Court; and we should by preference follow the former. I think moreover that a consideration of the rule with reference to the facts of the present case leads to the same conclusion. The right in litigation in the claim petition and in O.S. No. 919 of 4914 was the right of 5th defendant to treat this suit property as the property of defendants 1 and 2 in opposition to the mortgage right therein set up by the plaintiffs. The dismissal of plaintiff's claim petition followed by the dismissal of their suit O.S. No. 919 of 1914, had the effect of conclusively settling this question as between plaintiffs and 5thdefendant. It seems to us unreasonable to suggest that the result was only conclusive as regards the particular suit O.S. 872 of 1913, out of which the decision arose and that it was open to plaintiffs in spite of this decision again to contest the same person's right of proceeding against the same property in another suit.
10. If they could not do so, then neither could they seek to enforce their mortgage against an auction purchaser in the second suit. For, as Sadasiva Aiyar, J. has so clearly pointed out in the case already quoted, Velu Padayachi v. Arumugam Pillai (1919) 38 M.L.J. 397 , the one is a necessary consequence of the other. ' The conclusive establishment of the decree holder's right to bring the property to sale free from the claimant's alleged encumbrance involves the right of the purchaser at the sale to get a title to the property free from such encumbrance '.
11. I would therefore hold that the order on plaintiffs' claim petition is conclusive and that the suit mortgage is not enforceable against the items of property dealt with therein. The decree of the lower appellate court should be modified accordingly. Plaintiffs should pay the costs of defts. 3, 4 and 5 throughout.
12. The facts are fully set out in the judgment of my learned brother and I agree that Mr. Ananthakrishna Aiyar's contention that the rights of the plaintiffs are now gone must prevail by the terms of Order 21, Rule 63 of the Civil Procedure Code. The effect of this rule combined with the fact that the suit No. 919 of 1914 was dismissed as the plaintiffs did not pay the costs, will, in my opinion, debar the plaintiffs from re-agitating their rights again even if the proceeding be, as here, a regular suit on the mortgage. In other words, once the order became ' conclusive ' in the words of the rule, a suit on the mortgage is barred at any time. It is however strenuously contended by Mr. Padmanaba Aiyangar for the plaintiffs that the order is not conclusive against the auction purchaser in another proceeding. See Umesh Chunder Roy v. Raj Bullubh Sen I.L.R.(1982) Cal 279. There a claim was rejected in attachment in execution of a decree for rent; the judgment debtor paid off the decree and no sale was held. The effect of this was that the attachment ceased and any right of the claimant became valid and she had no need to bring a suit to establish them. The learned judges based their decision on the fact that the decree was paid off and in fact differed on that ground from the lower court. Were it otherwise, the case may be said to be conclusive only as to the proceedings to which it relates. Reference may here be made to the passage in the judgment of Sadasiva Aiyar, J. in Velu Padayachi v. Arumugam Pillai (1919) 38 M.L.J 397 . He says at page 403. ' The auction purchaser is entitled to take advantage of the order against the claimant in such a case (if it is not set aside by a suit within one year) not be cause the purchaser is the representative of the decree holder but because the order which eatablished the right of the decree holder to bring the property to sale against the claim of the claimant cannot be given effect to otherwise and was clearly intended by the legislature to have the effect of precluding the claimant from putting forward his claim again in opposition to the auction purchaser at the sale held in pursuance of the order against the claimant.' In the case reported in Ramaswami Chetty v. Alagiri Chetty (1914) 27 I.C. 800 it is clearly laid down by Wallis, C.J. and Seshagiri Aiyar, J., that the effect of omitting to bring a suit is to bar the remedy. That was a case of attachment before judgment and the learned Judges say ' The statutory suit under Order 21, Rule 63 is to establish the right which the attaching plaintiff claims to the property in dispute. This in our opinion is a right to attach the property in question as the property of the defendant, whenever it may be his interest to do so and the effect of not suing would be to debar him from claiming to attach such property in any future time. The fact that the attachment effected by him would, if it had not been raised previously have come to an end by the dismissal of the suit does not affect his right to sue under Order 21, Rule 63.'
13. I agree with my learned brother in preferring to follow the Madras decision, especially having regard to the grounds on which in my opinion the Calcutta decision was based, It is not necessary to discuss the point taken as to limitation and I therefore agree with the order proposed.