A later adjudication can supersede the order under Rule 103, and the petitioner is not obligated to file a suit within a year to establish the right.

Venkataramana Rao, J.

1. This is an application to revise an order refusing delivery of possession under Order 21, Rule 95, Civil Procedure Code. The petitioner filed O.S. No. 31 of 1929 on the file of the Subordinate Judges Court of Devakottai on a mortgage executed by one Muthuswami Servai, father of respondents 1 and 2 herein. The property mortgaged was admittedly joint family property wherein the said Muthuswami Servai and his sons were interested. In execution of the said decree three items of mortgaged property mentioned in the decree therein were brought to sale and purchased by the petitioner himself on the 29th June, 1931. After the purchase, the petitioner filed an application E.A. No. 118 of 1932 for delivery of possession of the said items and obtained delivery of items 2 and 3 but not of item 1. This was in consequence of an obstruction by respondents 1 and 2. The petitioner then filed an application on the 4th March, 1932, E. A. No. 203 of 1932 on the file of the Court of the Subordinate Judge of Devakottah for removalof the obstruction. It may be stated that before the petitioner purchased the said properties, the second respondent, Krishna Servai had filed a suit for partition O.S. No. 153 of 1929 on the file of the District Munsiffs Court of Devakottah against his father Muthuswamy Servai and his brother including the first respondent in this case. In the said suit Krishna Servai impeached the said mortgage on the ground that it was not binding on the family and therefore on respondents 1 and 2 herein. The first respondent supported Krishna Servai in the said litigation. To the said suit the petitioner was made a party. When E.A. No. 203 of 1932 was taken up for hearing the said suit was pending. In answer to the said application both the respondents 1 and 2 filed a counter-affidavit stating their objections to the request made by the petitioner for delivery of possession of the property. In paragraphs 5 and 6 of the counter-affidavit they set out in detail the nature of their objections. They stated that the properties which were the subject-matter of the mortgage suit O.S. No. 31 of 1929 were the subject-matter of a suit between the parties in O.S. No. 153 of 1929, that the said suit was pending trial, that as the petitioner purchased the properties pending the said litigation, his purchase would be affected by the doctrine of lis pendens and he would not be entitled to any relief inconsistent with the claim of the respondents. They further alleged thus in paragraph 6 of the said affidavit:

In view of the considerations set forth in paragraph 5 supra, this Court trying the same question and giving a decision thereon may result in a conflict of decisions by two Courts which ought not to be allowed.

2. They also alleged that in view of the said litigation the question of title should not be gone into. The learned Subordinate Judge who dealt with the said application did not go into the question whether in view of the fact that the mortgage was by the father the head of the family, it was open to the defendants to resist the purchasers claim for delivery of possession, but as the suit O.S. No. 153 of 1929 was pending he dismissed the application holding that the petitioner failed to prove that the resistance was caused by the respondents at the instance of the judgment-debtor. This order was passed on the 9th July, 1932. The said O.S. No. 153 of 1929 was disposed of by the learned District Munsiff of Devakottah on the 19th August, 1932, and so far as the mortgage in favour of the petitioner was concerned the learned Judge dismissed the suit. He held that Krishna Servai and Ramaswami Servai the respondents 2 and 1 herein, were bound by the mortgage and the auction sale and it was no longer open to them to recover any portion of the said property. There was an appeal against the said decision and it was confirmed by the learned Subordinate Judge of Devakottah on the 30th January, 1933. It will thus be seen t