Sir John Edge :-

These are two consolidated appeals by the plaintiffs from two decrees, dated the 30th July, 1917 of the High Court at Patna, which reversed a decree, dated the 21st May 1914, of the District Judge of Dharbhanga and dismissed the suit of the plaintiffs.

The suit was brought by the plaintiffs, the appellants here, on the 10th January, 1912, in the Court of the Subordinate Judge of Dharbhanga for certain declarations as to title and for a decree for possession of certain immoveable property and for mesne profits. That immoveable property will in this judgment for the sake of brevity be referred to as the property in dispute. The property in dispute was originally the property of one Sadik Ali Khan : the plaintiffs claim title through one Lalji Lal; the defendants claim title through one Kamal Narain Choudhri. The facts will later be briefly stated, but their Lordships may here say that in their opinion the fate of these consolidated appeals depends upon the effect of an order of the 14th September, 1886, of the Subordinate Judge of Tirhoot, which was made in certain execution proceedings to which Kamal Narain Choudhri, as an objector to an application for the attachment of the property in dispute, and Lalji Lal, as the applicant for the attachment, were, with Sadik Ali Khan, parties.

Sadik Ali Khan, on the 10th January, 1882, by deed mortgaged the property, in dispute, and much other immoveable property with which this suit is not concerned, to Lalji Lal for Rs. 40,000, and interest which might become due thereon. On the 27th September, 1883, Kamal Narain Choudhri brought in the Court of the Subordinate Judge of Muzaffarpur a suit for money due to him against Sadik Ali Khan. On the same day that suit was transferred to the Court of the District Judge of Dharbhanga. On the 24th November, 1883, Kamal Narain Choudhri obtained from the District Judge an order for the attachment before judgment of the property in dispute and that property was attached. On the 2nd April, 1884, Kamal Narain Choudhri obtained from the District Judge a decree against Sadik Ali Khan for the money owing to him. On the 27th June, 1884, Kamal Narain Choudhri obtained from the District Judge attachment of the property in dispute. On the 21st March, 1885, Sadik Ali Khan by deed further mortgaged to Lalji Lal for Rs. 90,000 the property in dispute, and much other property, with which this suit is not concerned.

The Rs. 90,000 included the debt due under the mortgage of the 10th January, 1882, and it was expressly agreed by the mortgage of the 21st March, 1885, that Lalji Lal's security under the mortgage of the 10th January, 1882, should continue. On the 11th December, 1885, Lalji Lal brought under Section 88 of the Transfer of Property Act, 1882, against Sadik Ali Khan a suit in the Court of the Subordinate Judge of Muzaffarpur to recover the money due to him under the mortgages of the 10th January, 1882, and the 21st March, 1885, amounting together to Rs. 98,519-13-6, and further interest. On the 12th February, 1886, Lalji Lal obtained in that suit a decree under Section 88 of the Transfer of Property Act, 1882, for sale of the properties mortgaged if the decretal money should not be paid to him by Sadik Ali Khan within four months from the date of the decree.

The property in dispute being under attachment in execution of Kamal Narain Choudhri's decree of the 2nd April, 1884, Lalji Lal, on the 20th Feb ruary, 1886, presented to the Court of the District Judge of Dharbhanga a petition for the execution of his decree of the 12th February, 1886, in which he stated the nature of the assistance from the Court for which he asked thus :-

"That in the above-mentioned case, though postponement for four months has been granted to the judgment-debtor to pay the entire decretal amount, but there is very little chance of the judgment-debtor paying the entire decretal money within the time allowed. The judgment-debtor owes a considerable amount, and besides this