MODI, J.—This is a civil regular second appeal by the defendants Ganeshmal and Tarachand alias Otmal against an order of the learned Civil Judge, Sirohi, dated the 1st March, 1961, by which he set aside the judgment and decree of the trial court dismissing the plaintiffs suit as barred by time and remanded it back to the Munsiff for disposing of it on the merits.

2. This was, to start with, a simple suit under O.21, r. 63 C.P.C. which was instituted in the court of the Munsiff Sirohi on the 18th July, 1957, and has had a chequered history principally because it has been mis-handled by the parties and the courts below and the court of first appeal in particular (Mr. Sardar Singh Civil Judge, Sirohi). The plaintiff Nathmal and his son Meghraj alias Maganlal obtained a money decree against defendant No. 2 in this appeal and took out execution thereof. They attached two houses alleging them to be of the judgment-debtor Pratapchand, the description whereof was given in paragraph 2 of the plaint. Defendants respondents Ganeshmal and Tarachand alias Otmal raised on objection before the execution court under O.21, r. 58 C.P.C. to the effect that the said houses had been mortgaged to them by defendant Pratapchand for a sum of Rs. 1500/- carrying interest at the rate of eight annas per cent, per mensem with a stipulation that if the mortgage was not redeemed within a period of two years, the mortgaged property will be treated as having been sold to the mortgagees, and as the mortgage had actually not been redeemed within the time-limit specified in the mortgage-deed, the defendants mortgagees had become absolute owners of the properties in question. The plaintiffs contended that the mortgage had been made to defeat their claim and was without consideration. By its order dated the 2nd August, 1956, the executing court upheld the mortgage and on that view ordered that the attached properties be sold subject to the mortgage. Thereupon the plaintiffs instituted the suit, out of which this appeal arises, on the 18th July, 1957, on the allegation that the mortgage was a collusive one entirely without consideration and had been entered into between defendant No. 3 and defendants Nos. 1 and 2 solely with a view to delay and defeat the plaintiffs claim. The plaintiffs, therefore, prayed that the mortgage dated the 5th October, 1953, being without consideration and collusive and having been made with a view to delay and defeat their claim be declared to be inoperative against the plaintiffs and that the properties under attachment be held to be liable to attachment and sale in execution of the plaintiffs decree.

3. The defendants mortgagees resisted the suit. They contended that the mortgage-deed was genuine and for consideration and had not been made to defeat the plaintiffs claim and consequently prayed that plaintiffs suit be dismissed.

4. The trial court by its judgment dated the 29th June, 1959, repelled the defence and upheld the plaintiffs contention that the houses in suit were liable to be sold in execution of the plaintiffs decretal claim without being subjected to any liability under the mortgage deed dated the 5th October, 1953. The defendants went up in appeal to the learned Civil Judge, Sirohi, before whom it seems to have been argued on behalf of the appellants for the first time that the plaintiffs suit had been brought under sec. 53 of the Transfer of Property Act as a representative suit on behalf of the creditors but as it had not been brought on behalf of or for the benefit of the creditors of the judgment-debtor Pratapchand and the permission of the court to bring such a suit had not been obtained under O.1, r 8 C. P. C. it deserved to be summarily dismissed. The learned Judge below somehow held that there was no doubt that the suit brought by the plaintiffs was a suit as contemplated by sec. 53 of the Transfer of Property Act. He further held that it was settled law in such a case that the provisions of order 1, rule 8 C.P.C. m

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