Under the Civil Procedure Code, no person who is not a party to the suit can prefer an appeal under Section 96.

Madhavan Nair, J.

1. This Appeal has been filed against the decree in O.S. No. 116 of 1927 on the file of the Court of the Subordinate Judge of Madura.

2. The Indian Bank, Ltd., Madras, is the appellant in this Court. The appellant was not a party to the suit or to the decree passed in it. A preliminary objection to the hearing of the appeal is taken by the respondents that since the appellant was not a party to the suit or decree in the Lower Court, this appeal is incompetent and should be dismissed.

3. The 1st plaintiff in the suit is a moneylender. The 2nd plaintiff is the purchaser of the suit properties from him. The defendant is the Official Receiver of Madura. There are no other parties to the suit.

4. The suit out of which this appeal arises was instituted by the plaintiffs under Order 21, Rule 403, Civil Procedure Code, to declare their title to two items of property and for a temporary injunction to restrain the defendant from taking possession of them.

5. On the 22nd March, 1923, a hypothecation bond Ex. A was executed in the 1st plaintiffs favour by one Somasundara Nadar, his adult son and five minor sons represented by their father. In September, 1923, the 1st plaintiff sued upon the bond. Somasundara Nadar and his sons remained ex parte and a preliminary decree was passed on the 27th October, 1923. The day before the decree Somasundara Nadar filed I. P. No. 63 of 1923 in the District Court and on the same date the Official Receiver of Madura was appointed as the interim receiver. Somasundara Nadar was adjudicated insolvent in January, 1924 and the District Court passed a vesting order in favour of the Official Receiver on 25th January, 1924. In the meanwhile, the 1st plaintiff had applied for final decree and on the 1st February he obtained it without impleading the Official Receiver in whom the properties of the insolvent had already vested. He executed the decree and himself purchased the hypothecated properties which consisted of three items and sold them to the 2nd plaintiff. The suit related only to two items. After his purchase the 1st plaintiff obtained possession of one item but he was obstructed by the Official Receiver with respect to the other item. Then two petitions were filed before the Subordinate Judge, one by the 1st plaintiff for removal of the obstruction caused by the Official Receiver and the other by the Official Receiver for delivery to him of the item already delivered to the 1st plaintiff. The two petitions were tried together and were decided in favour of the 1st plaintiff. He accordingly obtained delivery of the remaining item also. But the judgment of the Sub-Court was set aside by the High Court on revision, and before the defendant, the Official Receiver, could apply for re-delivery of the two items the suit under appeal was instituted by the plaintiffs under Order 21, Rule 103, Civil Procedure Code.

6. The Lower Court decided that the 1st plaintiff has acquired a valid title under the sale certificate to six-sevenths of the suit properties. As regards the remaining one-seventh it held that the defendants title should be upheld. In the result the 2nd plaintiff (that is, the purchaser from the 1st plaintiff) and the defendant, the Official Receiver, were declared entitled to joint possession of the two suit items for the respective six-seventh and one-seventh shares. In the memorandum of appeal the appellant has amongst other grounds raised the question that the Lower Court should, even on its finding, have dismissed the suit with a declaration of the plaintiffs rights as purchasers and should have referred them to a suit for a general partition to work out such rights as they may have.

7. It will appear from what has been stated above that besides the plaintiffs and the Official Receiver there were no other parties to the suit; and that having regard to his written statement the decree in so far as it related to joint possession and the declaration of title as regards the six-sevent