Spencer, J.

1. The properties in suit were attached and brought to sale in execution of a simple money-decree After that decree was passed, the judgment-debtor (1st defendant) , executed a usufructuary mortgage over them in favour of the second defendant in this suit, who in his turn assigned his mortgage rights to the present plaintiff. When the present plaintiff sued to recover possession of the properties on the strength of the mortgage, an objection was raised by the 3rd defendant, who was the auction-purchaser at the sale a in execution of the simple money-decree, that the suit was barred by limitation.

2. It appears that the plaintiffs assignor applied a few days before the sale to have the properties sold subject to his mortgage and asked the Court to have it so stated in the sale proclamation. The claim was dismissed as being made too late. The date of the order was 24th August, 1911. The present suit was not instituted till 1916 and is clearly out of time if Article 11 of the Limitation Act applies to it. The Subordinate Judge, dissenting from the view of the District Munsif, held that the suit was in time as the mortgagees application in August 1911 was, in his opin