Kanhaiya Singh, J.:— This is an appeal by the plaintiffs under Letters Patent from the decision of the learned Single Judge dated 15-12-1054, arising out of a suit brought under O. 21, R. 63 of the Code of Civil Procedure.

2. The point involved is simple, but it is not easy to unravel the tangled skein of this proceeding. The dispute relates to plots Nos. 678 and 679, together with a house thereon, situate in the town of Samastipur. The disputed property at one time belonged to one Mst. Bachia. She executed a simple mortgage bond in respect of this house in favour of the firm Damn Sah Halkhori Ram. The mortgage money remaining unpaid, this firm obtained a mortgage decree against Mt. Bachia and in execution of the mortgage decree, purchased the disputed property as far back as 1917. Damri and Halkhori, partners of the firm, died respectively, in October 1926 and March 1928. The firm, however, continued to function even after the death of Damri. The plaintiffs are proprietors of a firm, known and styled as Shanti Nayak Misri Lall. After the death of Damri and Halkhori, the members of their family executed a mortgage deed dated 24-8-1928 in favour of the plaintiffs hypothecating inter alia the disputed property. In 1932, the plaintiffs instituted a suit to enforce the mortgage bond against the members of the family of Damri and Halkhori, including Mt. Jagpatia, the widow of Damri, on the allegation that the family was joint and she was impleaded as an abundant precaution. Jagpatia resisted the suit and set up a paramount title on the allegation that her husband Damri was separate from the other members of his family, that the disputed house belonged exclusively to him and that, on his death, it devolved upon her, to the exclusion of other members.

3. The suit was dismissed against her but was decreed against other members of the family. The plaintiffs went up in appeal to the High Court, and there they exempted Jagpatia from the suit and got her name expunged from the record. In due course the mortgage decree was put into execution and the mortgaged properties were sold on 5-12-1938 and were purchased by the plaintiffs-decree-holders, except the disputed house, which was purchased by one Lalchand Lal. The plaintiffs were delivered possession through Court, and Mt. Jagpatia filed an application under O. 21, R. 100 of the CPC, complaining of her dispossession and claiming that she was in possession of the lands purchased by the plaintiffs in her own right. Her objection was allowed. Thereafter, the plaintiffs instituted a suit under O. 21, R. 103 of the CPC and obtained an ex parte decree.

4. Lalchand Lal, who had purchased the disputed property at an auction sale, did not apply for and did not obtain delivery of possession through Court. The present suit was brought on 26-7-1948, and although by that time nearly ten years had elapsed after the auction sale, he had not obtained the of possession. It is, however, stated that on 22-19-1950. He brought a suit for of the disputed property against the plaintiffs and that the suit was dismissed on 10-7-1953.

5. It may be noted that in execution of a money decree against Mt. Jagpatia, the disputed house was attached and nut to sale and purchased by Rameshwar Prasad (defendant No. 1) on 4-3-1946. He obtained delivery of possession on 28-8-1946.

6. It appears that the not proceeds of the sale held in execution of the mortgage decree were not sufficient to pay the amount due under the mortgage decree to the plaintiffs. Accordingly, the latter made an application under O. 34, R. 6 of the CPC, and obtained a decree for the balance. In execution of that decree, the plaintiffs again attached the disputed house, which had already been sold previously to Lalchand Lal at the auction held in execution of their previous mortgage decree. Defendant No. 1 made an application under O. 21, R. 58 of the CPC, objecting to the attachment, on the ground that he had purchased the disputed property at an auction and was in possession and that the judgment-debtors, namely, the heirs and descendants of Damn and had no subsisting interest therein. This application was allowed on 14-4-1948. On 26-7-1948 the present suit was brought by the plaintiffs for a declaration that the suit property belonged to the judgment and was in their possession, and defendant No. 1 acquired no good title by his purchase at the auction sale in execution of the money decree against Mt. Jagpatia alone.

7. Defendant No. 1 resisted the suit on various grounds. His defence was that the firm Damri Sah Halkhori Ram belonged exclusively to Damri, and consequently the disputed property belonged to Damri himself, that he was separate from the other members of the family and on his death the disputed property along with other properties devolved upon his widow, Mt. Jagpatia, by inheritance and that his widow was all along in possession. He contended, therefore, that he had acquired a good title by virtue of purchase at the auction sale, and the judgment-debtors had no interest left therein. His further plea was that when the disputed property was sold in execution of the mortgage decree by the plaintiffs themselves and purchased by Latch and, the plaintiffs could not re-attach and re-sell the property for recovery of the balance of the mortgage money.

8. The learned Subordinate Judge held that the firm Damri Sah Halkhori Ram was not the exclusive business of Damri, that both Damri and Halkhori were partners of the firm, each owning half share, and that Damri died separate from other members of the family and his properties came to his widow, Mt. Jagpatia. He further held that Mt. Jagpatia had eight annas share in the property in her own right, and she was in adverse possession of the rest of the property and had acquired perfected title by prescription. He, therefore, found that the defendant had acquired good title and the suit property was not available to the plaintiffs and dismissed the suit.

9. On appeal, the learned Addl. District Judge affirmed the finding of the Court of first instance that the firm Damri Sah Halkhori Ram belonged in equal shares to Dmri and Halkhori. He, however, held that so long as the rmction shle in favour nf Lalchand stood, the plaintiffs could not re-sell the same property and obtain a declaration that the disputed property he onged to the members of the family of Damri and Halkhori. He, however, negatived the finding of the learned Subordinate Judge that Mt. Jagpatia bad acquired title by adverse possession. On the question whether Damri was joint, he held that in view of the previous decision (vide Ext. 4(c)), it must be held that Damri died in a state of jointness, as that decision operated as res judicata. On these findings, he dismissed the appeal.

10. In the Second Appeal, the only point urged before the learned single Judge was that the purchase of the disputed property by Lalchand was not fatal to the present suit. The learned Judge considered the scope of a suit under O. 21, R. 3 of the Code and, relying upon a decision of this Court in Premsukh v. Satyanarain*, ILR 24 Pat 408 : (AIR 1945 Pat 485), and a decision of the Calcutta High Court in Puma Chandra Chakrabarty v. Kalipada Roy, 46 Cal WN 477 : (AIR 1942 Cal 386), laid down that the material question for determination in a suit under O. 21, R. 63 is the question of title, and mere proof of possession of the judgment-debtors at the date of attachment was not sufficient. These propositions of law are unexceptionable. So far as this Court is concerned, it is now well settled that a suit under R. 63 of O. 21 is a suit to establish a right to attach the judgment-debtors' property. The suit is brought not to set aside the order made under R. 60 but to establish the validity of the attachment itself.

11. Therefore, as laid down by this Court in the case of Premsukh, referred to above, it would not be enough merely to show that the judgment-deb-tors, and not the plaintiffs, were in possession at the date of attachment. In a suit under 0.21, R. 63 the material question for determination is the question of title. This is evident from the plain wording of R. 63, which provides that where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive. It is manifest, therefore, that in such a suit the possession of the judgment-debtor or of the claimant, though material, is not conclusive. What is conclusive is the tide of one or the other to the attached property.

12. Applying these principles, there can be no doubt that on the date of attachment of the disputed property by the plaintiffs, the judgment-debtors had no interest left therein. The property-had already passed to Lalchand in execution of the decree of the plaintiffs themselves. Therefore, it as plain that the judgment-debtors had no interest or right of any kind left in the disputed property. On this ground alone, therefore, the plaintiffs must be unsuited. The contention of the learned Government Advocate is that Lalchand had not obtained delivery of possession, and the judgment-debtors were still in possession. There is no finding by the Courts below that the judgment-debtors were in possession.

13. On the contrary the finding is that Mt. Jagpatia was in possession of the property, and since after his purchase, defendant No. 1 was in possession. Defendant No. 1 attached and purchased this property before the plaintiffs attached and advertised it for sale. From the absence of delivery of possession, the learned Government Advocate assumed that the judgment-debtors were in possession. From the fact that Latch and did not take out delivery of possession, it does not follow that the judgment-debtors were in possession. It is a question of fact, which must be established by evidence. Assuming that the judgment-debtors were in possession, this, as stated above, is not sufficient to the plaintiffs to a decree in such a suit.

14. It is well to remember that on the date of the suit the judgment-debtors had not acquired a perfected title by virtue of that possession, since only ten years had elapsed from the date of the purchase by Lalchand. Whether or not their possession had subsequently ripened into a perfected title cannot be taken into consideration for the simple reason that there is no evidence of the nature and character of their subsequent possession if any. At any rate, we are to consider the respective rights of the parties on the date of the suit. The learned Government Advocate then contended that mere possession of the disputed property constituted a right and was a interest. He urged that even if Lalchand had purchased the property, the executing Court could sell the property on the strength of the possession of the judgment-debtors.

15. In support of his contention, he strongly relied upon a Hench decision of this Court in Gobind v. Jagnarain*, AIR 1952 Pat 314. In that case, it has been laid down that possession is good title against all but the true owner and a person in peaceable possession of land has, as against everyone but the true owner, an interest capable of being inherited devised or conveyed. This decision, in my opinion, does not assist him in the least. In the first place, in that case the effect of possession of the judgment-debtors in a suit under O. 21, R. 63, was not involved and was not considered. Apart from that, even according to that decision, possession does not constitute a good title against the true owner. In this case, it is indisputably established that Lalchand had title to the disputed property and was the real owner. The judgment-debtors had no title. Therefore, their possession will not avail against the title of Lalchand.

16. From this point of view also, the plaintiffs cannot succeed in this case. They cannot blow both hot and cold in the same breath. They cannot say that Lalchand had acquired good title and urge at the same time that the title remained with the judgment-debtors, because of their continued possession, even though that possession Was, in law, not sufficient to perfect their title. It is not the case of the plaintiffs that the judgment-debtors had acquired interest in the suit property subsequent to the auction sale in favour of Lalchand and prior to the attachment obtained by them. It is thus established beyond doubt that the judgment-debtors had no interest in this property, and the plaintiffs could not attach and sell it on the ground that it belonged to the judgment-debtors. Whether or not it belonged to Mt. Jagpatia or, through her, to defendant No. 1 is not of much importance in this suit. In order to succeed, the plaintiffs must prove that the judgment-debtors had saleable interest in the disputed property, and this, as I hava stated above, they have failed to prove.

17. It follows that the decision of the learned Single Judge is right, and there is no merit in this appeal which must be dismissed with costs, payable to defendant No. 1.

Ramaswami, C.J:— I agree.

JD/K.S.B

18. Appeal dismissed.