Ramaprasada Rao, J.-This appeal is directed against the judgment of the learned Subordinate Judge, Coirnbatore. The defendant is the appellant. On 10th January, 1959 one C. P. Raju Mudaliar, as a partner of a managing agency firm to the defendant incorporated company, executed a simple mortgage for Rs. 10,000 in favour of the plaintiff and mortgaged the immovable properties and all the other properties belonging to the company. The consideration as recited in the deed of mortgage Exhibit A-1, was that it was to pay for two money decrees obtained against the defendant company by the plaintiff as proprietor of a concern known as “ Standard Commercial Corporation, Coimbatore.” In order to avoid execution of the decree so obtained by the plaintiff, the managing agents executed the above mortgage and according to them, averted further proceedings in execution of the money decrees. After the said mortgage was executed no moneys were paid thereunder. The plaintiff unsuccessfully made a demand under Exhibit A-9 for the repayment of the amount and thereafter, instituted the action. The defendant company denied liability under the mortgage and put the plaintiff to strict proof of the execution of the same. Their second contention was that G. P. Raju Mudaliar did not have the competence to execute the same and therefore, it is not binding on the company. In support of this contention , it was alleged that on the date when the mortgage was executed, one Mallikarjuna Iyer was in custody and control of all the properties of the Company as “provisional liquidator” appointed by the High Court, Madras in O. P. No. 82 of 1956. Since the provisional liquidator was so functioning on the date when the mortgage was executed in favour of the plaintiff, the mortgage deed is assailed on the ground that it does not bind the company. It was also sought to be made out that there was no resolution by the Board of Directors of the company which authorised G. P. Raju Mudaliar to execute the said mortgage. The learned Subordinate Judge after discussing the factual and legal contentions came to the conclusion that Raju Mudaliar had competence to execute the said mortgage and that the mortgage was true and valid in the sense that it was supported by consideration. The Court also noticed Exhibit A-7 which was a letter written by the Counsel for the defendant in a contemporary proceeding filed by the Syrian Bank, Coimbatore against the defendant company in and by which the defendant stated that he was not disputing the suit mortgage. The learned judge was inclined to accept the argument that after having stated so in Exhibit A-7, it is no longer open to the defendant to contest either the competence of G. P. Raju Mudaliar to execute the mortgage or the validity or truthfulness of the mortgage in other respects. The lower Court also found that there was a valid notice convening the general body meeting and that Raju Mudaliar, as Managing Agent of the company, did execute the mortgage deed in conformity with the provisions of the Act and in pursuance of the resolution passed in the said meeting. In the result, a preliminary decree was passed as prayed for by the plaintiff. It is as against this the present appeal has been filed.

2. Mr. Nainarsundaram, the learned Counsel for the incorporated company does not seriously contend that the mortgage is not supported by consideration. As a matter of fact, he would fairly concede that the resolutions disclosed that the mortgage was to avert the execution of money decrees obtained by the plaintiff as against the company and in this sense, Exhibit A-1 is not assailable as not beingtrue or binding on the company. But the sheet-anchor of his contention is that on 10th January, 1959 when the managing agents, represented by G. P. Raju Mudaliar executed this mortgage, there was a provisional liquidator functioning under the orders of Court and that the managing agents not having secured possession of the properties from the provi

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