LPA filed allowed.

V. RAMASWAMI J. :- The property bearing door No.57 Sir Thiagaraya Road, T. Nagar, Madras-17, was the subject-matter of a mortgage deed dt. 16th Nov. 1967, executed by Dr. C. Balasubramaniam, C. Balasubramaniam and Alamelu Ammal. The mortgage deed contained a power of sale under S.69 of the Transfer of Property Act. The first respondent herein filed a suit, O.S. No. 4650 of 1970 on the file of the X Assistant Judge, City Civil Court, Madras, for recovery of a certain sum of money against Mr. C. Balasubramaniam who is the second respondent herein. Pending the suit, in I.A. 13825 of 1970, the plaintiff first respondent herein obtained an order of attachment before Judgment on 11th Sept. 1970. The suit was decreed on 5-8-1971, and therefore, the attachment became absolute as and from that date. In exercise of the power of sale under S.69 of the Transfer of Property Act, the mortgagee brought the property to sale by auction and in the auction held on 7-2-1973, the appellant as the highest bidder purchased the property. The sale deed was executed on 10-5-1973, by the mortgagee and it was registered on 10-5-1973, itself. It may be mentioned that the mortgagee was not a party to O.S. No.4650 of 1970 or in the application for attachment before judgment. It is also not in dispute that the mortgagee was not served with the order of attachment as such. The property was proclaimed for sale in execution of the decree in O.S.4650 of 1970 in E.P. No.2473 of 1972. At that stage, the appellant purchaser filed E.A.5287 of 1973 on the file of the X Assistant Judge, City Civil Court, Madras, claiming to be the absolute owner of the property and, praying -

"(a) That the attachment of the half share of the property No.57 Sir Thiagaraya Road, T. Nagar, Madras and more fully described in the schedule hereto and made in E.P.2573 of 1973 in O.S.4650 of 1970 may be set aside and the property released from the attachment;

(b) the E.P. filed for bringing the half share in the property may be dismissed;

(c) That the sale of the said property may be postponed, pending the hearing of this petition;

(d) that the first respondent-plaintiff may be ordered to pay the costs of this petition

(e) that such further or other reliefs as this Hon'ble Court may deem fit and necessary in the circumstances of the case may be passed."

2. This petition was filed on 19-10-1973. The learned X Assistant Judge, City Civil Court, Madras was of the view that the mortgage cannot prevail over the attachment before judgment and that, therefore, the attachment could not be raised in respect of the half share of the judgment-debtor. In that view he dismissed the application. The purchaser filed C.M.A. 230 of 1977 on the file of this court quoting the provision of law under which the appeal was filed as O.21, R.58 (4) C.P.C., S.106 C.P.C. and S.15 of the City Civil Courts Act.This appeal was disposed of by a learned single Judge. Before the learned single Judge the first respondent decree holder took a preliminary objection that the appeal was not maintainable on the ground, that the claim application should have been dealt with under R.58 of O.21 as it stood prior to its amendment by Act 104 of 1976, which came into force on 1-2-1977, and under the provisions then existing, the order made in respect of a petition under R.58 is final and can be questioned only by way of a claim suit and not an appeal against that order. Though the judgment is not very clear about the reasonings on which this preliminary objection was disposed of, the ultimate finding of the learned Judge is that the appeal was maintainable. However, the learned Judge held that it is not possible or permissible to a mortgagee to nullify the order of attachment by selling the property attached in exercise of his powers under S.69 of the Transfer of Property Act and that, therefore, the sale is not binding and the interest of the judgment debtor could be proceeded against in execution of the decree against him. In t