Blair and Aikman, JJ.:— This was a suit brought by one Kishen Lal for enforcement of a mortgage lien. It has been found by the Court below that the mortgage was void under the provisions of section 276 of the Code of Civil Procedure. The Court below finds that there was, at the date of the mortgage, a subsisting attachment. That finding we conceive to be erroneous. There had indeed been a prior attachment in 1883 in the execution proceedings. Proceedings in relation to that matter had been struck off some considerable time before the mortgage was made. Indeed the defendant's ancestor, under the money-decree in the suit in which the attachment had been made had gone far to confirm Kishen Lal's position by himself applying in 1887 for an attachment in execution of the same decree. If there was a subsisting attachment, such an application was wholly superfluous. If there was no attachment, the mortgage was a good mortgage. We have the Privy Council's authority in the case of Puddomonee Dossee v. Muthoora Nath Chowdhry for the proposition that where the party prosecuting the decree is compelled to take out another execution, his title should he presumed to date from the second attachment. There is no evidence to disturb that presumption. The ruling of the Privy Council has been acted upon by this Court in the case of Hafiz Suleman v. Sheikh Abdullah . The result is that the decree of the lower appellate Court will be set aside, and the case will be remanded under section 562 of the Code or Civil Procedure through the lower appellate Court to the Court of first instance for trial upon the merits. The appellant will have the costs already incurred by him in the lower appellate Court and the costs of this appeal. The remaining costs will abide the result.
Appeal decreed and cause remanded.