1. The appellant claimed either that the attachment should be set aside in its entirety, as the decree was fraudulently obtained or, in the alternative, that the sale under the attachment should be subject to the mortgage. In either case, we think that the claim is covered by O. 21, R. 58 of the CPC. R. 62 provides for the recognition of the mortgage. R. 61 provides for the rejection of the claim.
2. We are unable to accept Mr. Devadoss's contention that the Code does not contemplate the rejection of a claim of a mortgagee as such; the decision in Nemagauda v. Paresha(1) shows that claims founded on mortgages are as much within the rule as any other claim. The learned counsel for the appellant has quoted no cases to the contrary: the decision in Bhiku v. Shujat Ali(2) refer to the question of possession being disturbed after sale: that has no bearing on the present question. Moreover the language of Article 11, Lim. Act, shows that orders refusing to recognize mortgages are within the article. Mr. Devadoss's contention that, as there was no investigation, the one year rule does not apply comes too late in the day. The language of Article 11 in the new Act is more comprehensive than that of the previous Act, and that hag been construed in this Court as covering orders after full investigation as well as orders passed on default. We entirely agree with these decisions: see Narasimha Chetti v. Vijiapala Nainar(3) and Subba Aiyar v. Subba Aiyar(4). The second appeal must be dismissed with costs.
S.N/R.K
3. Appeal dismissed.
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