Horace Owen Compton Beasley, C.J.

1. This case has been referred to us by our brother Jackson, J., because the question for decision by us has been the subject of conflicting decisions in Krishnappa v. Periaswami (1916) I.L.R. 40 M. 964: 32 M.L.J. 532 and Sethu Konar v. Ramaswami Konar (1925) I.I.R. 49 M. 494: 50 M.L.J. 205.

2. The question before us arises out of proceedings in execution. The 2nd defendant in Original Suit No. 348 of 1917 on the file of the 2nd Additional District Munsifs Court of Madura is the appellant here. The facts of the case may be briefly stated as follows. One Kaliappa Pillai was the original owner of the properties, the subject-matter of the suit, He left a widow and an adopted son Ramaswami Pillai. In 1889 the latter released the suit properties in favour of his adoptive mother. She sold the property in 1894 and between that date and 1909 there were different purchasers. In 1909 the appellant became the purchaser of the property and created a usufructuary mortgage in 1910 in . favour of the 6th defendant. In 1906 Ramaswami Pillai executed a mortgage of some of the properties which mortgage was assigned to the present 1st respondent. In 1917 the 1s