An order on a claim petition or a decree in a suit filed under Rule 63 does not extend beyond the execution of the decree which has given rise to those proceedings.

Alfred Henry Lionel Leach, C.J.

1. The question in this appeal is whether an order passed dismissing an objection preferred to an attachment under Order 21, Rule 58 of the Code of Civil Procedure, no suit having been filed under Rule 63, operates beyond proceedings in execution of the particular decree.

2. On the 13th September, 1919, Perianna Padayachi (the father of defendants 1 to 3), the fourth defendant and one Sengeni Padayachi executed a mortgage in favour of the plaintiff. Some of the mortgaged properties belonged to Perianna Padayachi, some to the fourth defendant and some to Sengeni Padayachi. On the 7th July, 1939, the mortgagee sued to recover the amount then due on the mortgage. With interest it came to Rs. 1,998. The properties owned by Sengeni Padayachi were sold in public auction by the revenue authorities for the recovery of land revenue and were purchased by the mortgagee, subject to his mortgage. Credit for the amount paid by the mortgagee for these properties was given to the mortgagors.

3. In original suit No. 183 of 1932 of the Court of the District Munsiff of Cuddalore the mortgagee obtained a decree on a mortgage of other property executed by the fourth defendant and Sengeni Padayachi. The hypotheca was sold, but the proceeds were not sufficient to pay in full the mortgagee, who was granted a personal decree for the balance. In execution of this decree the mortgagee attached as the separate property of the fourth defendant items 11 to 14 of the properties covered by the mortgage to the plaintiff of the 13th September, 1919. The fourth defendants brothers, defendants 7 to 9, objected to the attachment. They said that these particular properties belonged to the joint family of which they and the fourth defendant were members. The objection prevailed, but the mortgagee did not file a suit under the provisions of Order 21, Rule 63 of the Code of Civil Procedure to challenge this finding because he had obtained full satisfaction of the personal decree passed in Original Suit No. 183 of 1932 out of the properties owned by Sengeni Padayachi. Consequently the attachment came to an end.

4. In the present suit defendants 7 to 9 again advanced the plea that items 11 to 14 belonged to their joint family, but the District Munsiff held against them. He also held that the order passed on the objection raised by them in the execution proceedings arising out of the personal decree obtained in Original Suit No. 183 of 1932 did not disentitle the mortgagee to a mortgage decree in respect of items 11 to 14. On appeal by defendants 7 to 9 the Subordinate Judge agreed with the District Munsiff that items 11 to 14 belonged to the fourth defendant in his own right, but found that the District Munsiff erred in holding that the claim order did not operate as a bar to the suit to this extent. The decision of the Subordinate Judge on this question was in accordance with the judgment of this Court in Singariah Chetty v. Chinnabbi (1920) 40 M.L.J. 7 : I.L.R. 44 Mad. 368. The mortgagee then appealed to this Court, but the appeal was dismissed by Somayya, J., as he was also bound by the decision in Singariah Chetty v. Chinnabbi (1920) 40 M.L.J. 7 : I.L.R. 44 Mad. 368. The learned Judge doubted, however, the correctness of the judgment in that case and he gave the plaintiff leave to appeal under Clause 15 of the Letters Patent. Hence the present appeal.

5. Order 21, Rule 58 says that where a claim is preferred or an objection is made to the attachment of a property attached in execution of a decree on the ground that the property is not liable to " such attachment" the Court shall proceed to investigate the claim or objection. Rule 63 says that a party aggrieved by the order passed in these proceedings may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of any such suit, the order shall be conclusive.

6. The provisions contained in these and the intermediate rules are conf