Kumaraswami Sastri, J.
1. The District Munsif was clearly wrong in thinking that the petitioner lost his rights as mortgagee simply because he attached the surplus sale-proceeds. He is the puisne mortgagee and has a charge over the surplus sale-proceeds in Court after the property was sold at the instance of the prior mortgagee. The proper course was pursued by him when he applied for payment.
2. The attachment before judgment made at the instance of the counter-petitioner will not affect the petitioner's rights; Order XXXVIII, Rule 10, of the Code of Civil Procedure is clear.
3. It is also difficult to see how the attaching creditor is entitled to rateable distribution, as not only was there no application for execution made by him of the decree, but the money was realised before he attached the property: Arunachellum Chettiar v. Haji Sheik Meera Routher 7 Ind. Cas. 856: (1910) M.W.N. 688 and Srinivasa Ayyangar v. Seetharanayyar 5 M.L.J. 151.
4. It is argued by the counter-petitioner's Vakil that the order for payment was obtained by the petitioner by fraud and that apart from any other consideration the Judge had power to vacate the order. I can find nothing in the record to show that the petitioner or his Vakil were guilty of any fraud or were responsible for the entry as to notice to attaching creditors made by the execution clerk. As the attaching creditors had absolutely no right to the money which in law was clearly payable to the petitioner as puisne mortgagee, it is difficult to see what motive the petitioner and his Vakil had to perpetrate any fraud. Probably the execution clerk thought that it was his duty to have brought the fact of attachment to the notice of the Court and tried to cover up his negligence.
5. I set aside the order of the District Munsif with costs throughout. The civil miscellaneous petitions in the lower Court will be dismissed.