The main legal point established in the judgment is the mandatory nature of Order 21, Rule 63 in property disputes, and the conclusive nature of the order passed on the claim petition unless a suit is filed within one year to establish the claimed right.

Alfred Henry Lionel Leach, C.J.

1. The decision in this appeal turns on the answer to be given to a question of law, but in order to understand the question it is necessary to set out the facts, which are of a complicated nature.

2. On the 2nd July, 1925, one Krishna Aiyar sold to his brother Venkatachalapathi Aiyar a house in Dindigul town. Some eight months later Venkatachalapathi Aiyar executed a deed purporting to release his ownership of the property in favour of his brother Krishna Aiyar. The reason for this transaction is apparent. Venkatachalapathi Aiyar was in financial difficulties and he wanted to prevent the property falling into the hands of his creditors. In the course of the year he was adjudicated an insolvent and it is not a matter for surprise that the Official Receiver thought fit to take steps to obtain an order of the Court setting aside the deed under which Venkatachalapathi Aiyar purported to revest the title in his brother. On the 10th July, 1930, the Insolvency Court held that this was a sham transaction and cancelled the deed. This meant that the title to the property vested in the Official Receiver, as representing the estate of Venkatachalapathi Aiyar. On the 30th October, 1930, the Official Receiver sold the property to one Sulaiman, who on the 8th November, 1930, sold it to the respondent in this appeal. On the 29th March, 1931, the Official Receiver delivered possession to the respondent.

3. On the 20th July, 1925, Krishna Aiyar mortgaged to the appellant other immovable property. The mortgage debt was not re-paid and the appellant was compelled to file O.S. No. 77 of 1929, in the Court of the District Munsiff, Dindigul, to enforce his mortgage. As the property mortgaged was not of sufficient value to meet the appellants claim, he applied for, and obtained, an order for attachment before judgment of the house conveyed by Krishna Aiyar to Venkatachalapathi Aiyar and now in suit. On the 11th February, 1930, the appellant was granted a mortgage decree and the property covered by it was sold in execution. As it did not realize sufficient to discharge the decretal amount, the appellant filed an application asking for the sale of the house which he had attached before judgment. The respondent then filed a petition claiming that the property was his, but this petition was dismissed on the 20th August, 1931. Thereupon the appellant proceeded with his application in execution and the house was in due course sold by the Court, the appellant being the purchaser. When he was given possession, the respondent filed an application under Rule 100 of Order 21 of the Code of Civil Procedure asking the Court to restore possession to him. This application was dismissed on the 20th August, 1935, and consequently on the 12th July, 1936, the respondent filed in the Court of the District Munsiff of Dindigul the suit which has given rise to this appeal.

4. It is now necessary to return to the events of 1931. On the 23rd July of that year Krishna Aiyars sons, who are respondents 3 to 6 in this appeal, brought a suit against their father for partition of the family estate. They challenged the validity of a number of alienations made by him, and the number included the sale to his brother Venkatachalapathi Aiyar of the house and the mortgage of other property created in favour of the appellant on the 20th July, 1925. The appellant and the respondent were both made parties and their interests clashed. The respondent claimed title to the house in Dindigul through Venkatachalapathi Aiyar and the appellant claimed title to it through Krishna Aiyar. The Subordinate Judge of Dindigul, in whose Court the partition suit was instituted, held that the sale of the house in Dindigul by Krishna Aiyar to Venkatachalapathi was valid and he also held that the mortgage of the other property in the appellants favour was valid. The judgment in the partition suit was given on the 8th September, 1933, and as it was held that the sale to Ven