An attachment of property in execution of a decree does not create a charge on that property.

Reuben, J.

1. This appeal by the plaintiffs has been filed in the following circumstances.

2. The plaintiffs are members of a joint Hindu family. Braja Nath Marwari, a former karta of the joint family, filed Money suit No. 753 of 1928 against Ram Chandra Singh Modak and others. Daring the pendency of the suit, under the provisions of Order 38 of the Civil P. C., he obtained attachment of three villages Dhargram, Aria and Ramadih, belonging to the Modaks. The attachment was effected on 15-7-1928. On 14-10-1928, the suit was decreed on compromise, the plaintiff getting a decree for Rs. 1,700 payable in certain instalments. The petition of compromise which was made part of the decree contained a provision :

"That on the defendants failing to pay other instalments by the due date the whole of the unpaid balance of the decretal amount shall fall due and shall be realised by execution with interest thereon at 12 per cent. per annum from the date of default till realisation of the said sum, by sale of the attached property. The order of the attachment before judgment to subsist till the decree money is not satisfied."

The decree was put in execution in the year 1930 and the three attached villages were sold in execution of the decree on 18-8-1931. The purchase was made by the joint family of the plaintiffs as decree-holders and the sale was confirmed on 6-13-1931. The property was sold subject to a simple mortgage executed on 2-4-1922, by the Modaks in favour of the defendants of the present suit. Previous to the execution sale and during the pendency of the execution proceedings, the defendants of this suit had, on 10-4-1931, sued the Modaks on the foot of the simple mortgage bond of April 1922. In this suit, the joint family of the plaintiffs was not impleaded, nor was it made a party to the suit after the auctionale. The mortgage suit was disposed of on compromise between the Modaks and the defendants of the present suit on 6-1-1932. The defendants put the mortgage decree in execution (Ex. case No. 537 of 1932) and, on 17-1-1933, purchased the three mauzas in execution of the mortgage decree. The sale was confirmed on 18-2-1933, and the decree-holders auction-purchasers took delivery of possession on 9-9-1933. On 24-4-1944, the plaintiffs brought the present suit to redeem the mortgage of April 1922, contending that they were necessary parties to the mortgage suit of 1931 and that, not having been impleaded, they still have the right to redeem the mortgage, The suit has been dismissed by the learns d Subordinate Judge. Hence, the present appeal.

3. The purchase by which the plaintiffs became the owners of the property concerned (was ?) during the pendency of the mortgage suit. As such, it is affected by the doctrine of lis pendens. The present right of the plaintiffs to redeem, therefore, depends on whether in the circumstances preceding (heir purchase of the property they were necessary parties to the mortgage suit of 1931. It is contended that they were necessary parties on two grounds, firstly, that by the compromise between Braja Nath Marwari and the Modaks, a charge on the pro-party was created in favour of the joint family, and, secondly, that under Section 91 (f), T. P. Act, as it stood when they purchased the property in the execution sale, they were entitled to redeem the simple mortgage; this right cannot be takers away from them by any transaction or litigation between third parties.

4. A charge is thus defined in Sec.100, T. P. Act:

"Where immovable property of one person is by act of parties or operation of law, made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property."

Charges, therefore, may be divided into two classes, those created by an act of parties and those created by operation of law. According to the plaintiffs, the charge on which they rely was created by an act of the parties, namely, the agreem