This second appeal arises out of a suit for recovery of money on foot of failure of consideration for a transfer in favour of the father of the plaintiffs of a certain mortgage right. The defendant against whom the Courts below have decreed the suit is the transferor of the mortgage right.

The facts relevant to the determination of the two questions of law which have been argued before me lie in a short and narrow compass. One Karnam. Appiah effected a simple mortgage of certain properties in favour of one Ranga Reddi in 1929, having become the owner thereof by a sale deed from the original owner Sitaveerayya. In 1934 Ranga Reddi transferred the mortgage right to the defendant who in his turn transferred it later to the plaintiffs’ father, one Baliah. After Baliah’s death the plaintiffs obtained a decree against the original mortgagor Appiah, and in execution purchased the hypotheca themselves. The sale was duly confirmed and full satisfaction of the decree recorded by the execution Court. When, thereafter, the plaintiffs sought to obtain delivery, they found themselves obstructed by a third party, one Reddi Narayana Reddi, against whom they consequently filed a petition for removal of obstruction, which was, however, dismissed. Thereupon they instituted the. present suit to which the answer made so far as is material to this appeal was that they had a double hurdle in their way fatal to the action. Firstly, they had not pursued their remedy of suit under Order 21, rule 103, Civil Procedure Code. Secondly, they had not got the order confirming the sale set aside or the order recording full satisfaction vacated. The answer did not find favour with the Courts below. The defendant therefore appeals to this Court. Mr. Chenchiah, his learned counsel, has raised the two points again here before me.

Mr. Srinivasa Rao for the respondents has tried to meet the first of the points by urging that the provision of Order 21, rule 103, Civil Procedure Code, with reference to the institution of a suit for setting aside an order made under rule 98, 99 or 101 is only a permissive and not a mandatory provision, as the use of the word “may” therein suggests, and that the order under rule 99 in the present case is sufficiently efficacious to prove conclusively the absence in the defendant of the title which the latter had purported to convey to the plaintiff’s father, nonetheless and in fact the more so because of plaintiffs’ failure to follow up the summary order by the statutory suit. This argument in my opinion misses the real spirit and purpose of the provision in rule 103. The order does, no doubt, become conclusive, but only as between the parties to it, unless displaced by the result of the suit to be instituted by the party against whom the order is made. Of course, he may or may not institute the suit; but if he does not, the order becomes conclusive in favour of his adversary. That does not mean that as against persons who are not parties to the order it can be held up by the party against whom it is made, as in this case is being done by the plaintiffs, as conclusively proving the absence of any title in himself to the property in question and as affording him a cause of action on the basis of such want of title. The order relied upon by the plaintiffs is after all a summary order which the execution court made because it was satisfied, - and that was all that it had to be satisfied about — that the obstruction was occasioned by a person other than the judgment-debtor claiming in good faith to be in possession of the property on his own account. No question of title could be gone into at that juncture, nor was any such question decided by the order. In these circumstances I should have thought it incumbent on the plaintiffs prima facie to institute the suit under Order 21, rule 103, Civil Procedure Code before they could claim that the consideration paid by their father for the defendant’s transfer of the mortgage right to him ha