JUDGMENT

VARADARAJAN, J.:—This appeal by special leave is directed against the Order dated 17-4-1970 of a learned single Judge of the erstwhile Mysore High Court (now Karnataka High Court) in CRP 1255 of 1969 which was filed against an Order dated 3-3-1969 of the Principal Civil Judge, Bangalore in Misc. Case 6 of 1969, filed by Kabidi Venku Sah who was the first respondent in the Civil Revision Petition and is the appellant in this Civil Appeal. The Principal Civil Judge allowed the Misc. Case which was filed under O. 21, R. 58 of the Civil P. C. for raising an attachment over the house property effected at the instance of Syed Abdul Hai who was the petitioner before the High Court in the Civil Revision Petition and is the first respondent in this Civil Appeal. The house property belonged originally to one Vittal Sah who was the husband of the second respondent Sharada Bai. Vittal Sah had executed a simple mortgage over the property in favour of the appellant on 31-7-1948. The appellant obtained. a decree on the mortgage on 4-9-1967 in O. S. 217 of 1966 on the file of the Principal Civil Judge and brought the property to sale in execution of that decree and purchased it himself on 24-7-1968 after obtaining the necessary leave of the Court to bid and set-off. The sale was confirmed oh 28-8-1968 and the appellant took delivery of the property on 28-11-1968 in Misc. Case 95 of 1966, as the court auction purchaser.

2. The first respondent Syed Abdul Hai obtained a money decree against Vittal Sah on 30-3-1967 in O. S. 386 of 1964 on the foot of a promissory note executed in 1961 for a sum of Rupees 20,000/-. He obtained attachment before judgment over the same house property on 24-9-1964 on the same day on which he filed that suit in the Court of the Principal Civil Judge, Bangalore. He filed E. P. 31 of 1968 for realising the money due under the decree by bringing the house property to sale pursuant to the attachment before judgment effected on 24-9-1964. Thereupon the appellant Venku Sah filed Misc. Case 6 of 1969 under O. 21 R. 58 of the Civil P. C. for getting the attachment raised, alleging that the second respondent Sharada. Bai had no saleable interest in the property on the date of the attachment and that the first respondents simple money decree cannot prevail over his mortgage decree and the sale of the property obtained in his favour in execution of that decree.

3. The first respondent Syed Abdul Hai opposed the claim petition, contending that the court proceedings referred to in the claim petition are collusive and fraudulent and that the delivery alleged by the appellant is only a paper delivery and possession continued to be with the second respondent.

4. The Principal Civil Judge found that the mortgage decree, execution sale and delivery of the property to the appellant cannot be questioned in the first respondents claim petition as being collusive and could be questioned only in a separate suit. He also found that there was no material on record to show that the second respondent continued to be in possession of the property after its delivery to the appellant pursuant to the court auction sale in his favour. He rejected the contention that the appellant was not entitled to file any claim petition under O. 21 R. 58 of the Civil P. C. for raising the attachment before judgment effected under O. 38 R. 5 and held that there is nothing on record to show that the appellant was aware at the attachment, and therefore there was no delay in filing the claim petition and that the claim petition could be filed under O. 21 R. 58 even in the case of attachment before judgment in view of the provisions of O. 38, R. 8 which says that when any claim is preferred to property which has been attached before judgment, such claim shall be adjudicated upon in the manner provided for the adjudication of claims to property attached in execution of a decree for payment of money. The Principal Civil Judge rejected the first respondents conten