Madhavan Nair, J.
1. The plaintiff's suit is for redemption. The plaint mentioned land belonged to one Venkataranganatha Naicker. It was sold in execution of a Small Cause decree against him and the plaintiff obtained it under a sale from one Tavazi Ambalam, whose father purchased it from the auction purchaser. The auction sale held on the 13th of July, 1891, was confirmed on the 14th of September, 1891. While the property was under attachment, the owner of the property mortgaged it to the predecessor-in-title of the defendant on the 15th June, 1891, under Ex. I. The mortgagee under Ex. I had paid off a prior mortgage existing on the property. The Subordinate Judge held that the mortgage under Ex. I was void under Section 64, Civil Procedure Code, that the defendant, the assignee of the mortgage interest, prescribed for an absolute title to the property, that the prior mortgage which was paid off by the defendant did not subsist at the time of Ex. I and that the plaintiff's suit was barred by limitation. He therefore dismissed the plaintiff's suit.
2. It is argued by Mr. Bhashyam Aiyangar on behalf of the plaintiff (appellant) that the Subordinate Judge's decision that the defendant had prescribed for an absolute title to the property is wrong, that the alienation of the suit property made while the attachment was pending is only voidable at the option of the plaintiff, that the present suit cannot, therefore, be considered to have been barred by limitation and that, at any rate, since the prior othi was paid off by the mortgagee under Ex. I, the plaintiff could sue for the redemption of that othi.
3. Mr. Muthukrishna Aiyar appearing for the respondent has not tried to support the decision of the Subordinate Judge that the mortgagee under Ex. I could, if the mortgage is invalid, prescribe for an absolute title and, therefore, the cases cited by the appellant, namely Gopal Dasu v. Rami : AIR1921Mad410(1) and Ayisa Bivi Ammal v. Kalandarasa Rowther : (1924)46MLJ501 and Nadepena Appamma v. Chinnaveadu : AIR1924Mad292 against the decision of the Subordinate Judge on that point need not be considered.
4. The real question for decision is whether the plaintiff's suit is barred by limitation. The argument for the respondent is that the mortgage made pending the attachment in this case is void as against all claims enforceable under the attachment, and, since no suit was instituted by the plaintiff or his predecessor-in-interest within the twelve years' period allowed either under Article 137 or Article 138 of the Limitation Act, the present suit is barred by limitation.S. 64,Civil Procedure Code, says in effect that ' private alienation of property after attachment shall be void as against all claims enforceable under the attachment.' The cases brought to my notice by the learned Vakil for the appellant to show that such alienations are only voidable do not really support his argument and can all be explained with reference to their special circumstances. In Gangayya v. Venkataramayya (1922) 44 MLJ 80. the attaching decree-holder had agreed for a consideration with the purchaser of an item of the attached property that he would not bring that item to sale in execution of the decree. With reference to this special circumstance, the learned Judge pointed out that Section 64, Civil Procedure Code, is really one intended to benefit decree-holders but that benefit being for the decree-holder he could waive the benefit. In that case it was held that, ' as the decree-holders had entered into an actual contract with the purchaser, they cannot be permitted to go back upon their contract and insist upon the application of Section 64 in their favour. To allow them to do so would be clearly to perpetrate a fraud.' In view of this explanation this decision does not support the appellant. The decision in Gosta Behari v. Sankar Nath 36 IndCas 510.) is also distinguishable. It decided that a transferee from the judgment-debtor of immoveable property attached in execution of a decree becomes the owner of the property and is competent to make an application under Rule 89 of Order 21, Civil Procedure Code, for cancellation of the sale in execution of the decree. It does not say that a private alienation of property pending attachment is not void as against all claims enforceable under the attachment. The learned Judges who decided the case took special care to point out that ' in the case before us there is no question of protection to the decree-holder or the enforcement of the claim under the attachment;' and they proceed to say, '' The effect of the application under Rule 89, if granted, is forthwith to satisfy the entire decree. It may be that, in some instances, the effect is to place the decree-holder in a better position than he occupies under an execution sale. Consequently, by no stretch of language can it be said that, when an application is made in conformity with Rule 89, any question arises as to a claim enforceable under the attachment within the meaning of Section 64.' The decision in Mariappa Pillai v. Raman Chettiar ILR (1918) M 322. cited to show that the word ' void ' in Section 36 of the Provincial Insolvency Act means only ' voidable ' cannot, in my opinion, be relied upon in support of the appellant's argument; for that decision as well as the other decisions referred to in it proceed on the analogy of the English Bankruptcy Act and also upon the consideration that the Act makes the intervention of the Court necessary to set aside an alienation which would not be so if the transfer were void ab initio. The observations of their Lordships of the Privy Council in Dinobundhu Shaw Chowdhry v. Jogmaya Dasi ILR (1901) C 154: 12 MLJ 73. also support the view that a private alienation of property pending attachment is wholly void against all claims enforceable under the attachment. Their Lordships observe that ' so far as the mortgage for Rs. 40,000 prejudiced the execution-creditor, it is void as against him but the second does not render void transactions which in no way prejudice him.' In these circumstances, I hold that the alienation in this case, Ex. I, made pending attachment is void under Section 64, Civil Procedure Code. The purchaser at the sale in execution of the decree having become entitled to possession of the property at the time of the sale and no suit having been brought by him within twelve years after the sale, the plaintiff's present suit is barred by limitation under Article 137. If Article 138 is the article applicable, even then twelve years had expired after the date of sale and the plaintiff's suit is barred by limitation.
5. The mortgage being void, the next question for consideration is whether the prior othi paid off by Perumal Naidu, the defendant's predecessor-in-interest and the mortgagee under Ex. I, is alive for his benefit. It is to be observed that that it should be considered to have been kept alive for the benefit or Perumal Naidu is argued not by the defendant but by the plaintiff. The circumstances of the case clearly show that there was no intention on the part of the mortgagee to keep the prior othi alive. The Court sale was not subject to any prior encumbrance. It is not clear when the prior mortgage of 1887 was actually paid off; but that it did not subsist at the time of Ex. I is clear as it was already discharged by a portion of the consideration for Ex. I. The document Ex. I says, ' I have given the above land on othi to you including the right to both varams, and taken the consideration amounts as detailed hereunder : the othi amount of Rs. 280 has been paid by you to V enkatachallam Pillai in respect of the othi made by me on the 3rd of February, 1887 last on the said land and the amount received by me in cash...'. We know only this, viz., that Rs. 280 was paid by the mortgagee to Venkatachallam Pillai. The circumstances under which it was paid and the time when it was actually paid are not disclosed by the evidence. The question being primarily one of intention see Gokaldas v. Puranmal Premsukhdas (1884) ILR 10 C 1035 (PC) I do not think the Subordinate Judge was wrong in coming to the conclusion from the circumstances of the case that the prior othi was not kept alive at the time when Ex. 1 was executed. In this view, it follows that the plaintiff could not take advantage of the prior othi for purposes of this suit.
6. No other question was argued before me by the learned Vakil on behalf of the appellant. As the plaintiff's suit is barred by limitation, I dismiss this second appeal with costs.