John Edge, Kt., C.J. and Blennerhassett, J.@mdashThis is a suit for sale u/s 88 of the Transfer of Property Act, 1882. The plaintiff''s title is that of auction purchaser at a sale of the rights and intetests of the mortgagees under the mortgage in question. It appears that the attachment was first made u/s 268 of the Code of Civil Procedure. The Court executing the decree having ruled that the attachment should be made u/s 274, the attachment u/s 268 was withdrawn and an attachment u/s 374 took place. Subsequently to that attachment the rights and interests of the mortgagees in the mortgage were brought to sale and sold. The sale was confirmed and a certificate of sale granted to the plaintiff who was the purchaser. The present suit has been dismissed on the ground that the rights of the mortgagees judgment-debtors in the previous case, by reason of the attachment having been made u/s 274, did not pass to the auction purchaser, the plaintiff here. In support of that contention the decisions of this Court in Mahadeo Dubey v. Bhola Nath Dichit ILR All. 86, and Ram Chand v. Sitam Mal ILR Ali. 506, have been relied on. It has also been pointed out that according to the decision of this Court In Karim-un-nissa v. Phul Chand ILR All. 134, the attachment should have) been made u/s 268. However, other High Courts" have taken a different view of the section under which such attachments should be made. Their Lordships of the Privy Council on the 5th of July 1882, in Balkrishna v. Masuma Bibi I.L.R.All. 142, held in a somewhat analogous case that, even if the Court executing a money decree had no jurisdiction to attach mortgaged lands out of its district, it had jurisdiction to sell in execution the right to enforce a mortgage held by the judgment-debtor over those lands. That decision was naturally not referred to in the case of Mahadeo Dubey v. Bhola Nath Dichit, which was decided on the 23rd of August 1882, and it appears to have escaped the attention of the learned Judges in Ram Chand v. Pitam Mal. Whether the attachment ought to have been made under the one! section or under the other, all the parties interested knew that the rights and interests of the mortgagee under the mortgage were being put up for sale; and those interests having been sold and the sale having been confirmed and a certificate granted to the plaintiff, he was, so far as that point is concerned, entitled to maintain the suit.
2. The suit having been wrongly dismissed on this preliminary point, we set aside the decrees of both the Courts below, and remand the suit u/s 562 of the CPC to the first Court. The costs of the appeals will abide the result.
