L.S. Jackson, J.@mdashIt appears to me that the decision of the lower appellate Court is erroneous. The suit relates to certain property which belonged originally to one Ala Hafez. This person mortgaged the property in question to Bani Madhab on the 12th Aghran 1268. Immediately afterwards, that is to say, on the 12th Pash, he mortgaged the same property over again to Iswar Chandra, and Iawar Chandra it seems, had no notice of the first mortgage. Both mortgagees brought suits against Ala Hafez and got decrees for the money advanced, respectively, with a declaration that the property was liable to be sold in satisfaction of their decrees, and they both subsequently attached the property. Pending the attachment one Dhan Krishna preferred a claim, and that claim was allowed u/s 246 of the Code of Civil Procedure. Bani Madhab, who after this sold his rights to the present plaintiff Chintamani, took no steps immediately to get rid of this order. But Iswar Chandra, the other mortgagee, did bring a suit within one year, and got the claim of Dhan Krishna set aside, and established the rights of the judgment-debtor. He then proceeded to have the property sold under his own decree, and he purchased it himself. Bani Madhab''s vendee, Chintamani, now brings this suit in his turn against Iswar Chandra, to have it declared that the property may be sold in satisfaction of his earlier lien. This suit has been thrown out by the Courts below not on the ground that, as alleged by Iswar Chandra, the mortgage transaction between Bani Madhab and Ala Hafez was one of a fraudulent character, but on the ground that Bani Madhab by omitting to bring any suit within one year after the allowance of Dhan Krishna''s objection, had lost his right of lien upon the property, and was effectually concluded by that order.
2. It does not seem to me that the terms of section 246 have the effect of completely barring any party against whom an award is given under that section, whatever circumstances may afterwards happen. I do not think that if this property had been attached by several creditors, and all those attachments had been removed in consequence of the claim of Dhan Krishna, it was necessary for each attaching creditor to bring a separate suit; but I think that when one of those creditors brought a suit against the objector, and in that suit set up the right of ownership of the original judgment-debtor, he effectually got rid of the claim of the objector, and left the road open for other parties having a lien upon the property. I think therefore that the present plaintiff, who represents the earlier mortgagee, is not debarred by his omission to bring a separate suit u/s 246, but that he is quite competent to maintain his present contention against Iswar Chandra, and to enforce the lien which he had upon that property under the mortgage effected by Ala Hafez, I think therefore that the decision of the Court; below must be set aside with costs.
Markby, J.
I am of the same opinion.
