The Judgment of the Court was delivered by

Oldfield, J.:— On the merits the question in this Appeal is whether Exhibit E. a hypothecation bond in favour of plaintiff-appellant by the widows of two partners, Muthu and Raman Chetty, as guardians of first to fourth defendants, their minor sons, is without consideration and merely colourable or was executed in the words of section 53, Transfer of Property Act, with intent to defeat or delay creditors.

The undisputed circumstances are that Exhibit E hypothecates for its full value all the immoveable property of first to fourth defendants; that plaintiff is the/brother of one executant, the widow of Muthiah Chetty; and that of the four other creditors of the firm, whose debts plaintiff was to pay as part of the consideration, one is a dayadi of plaintiff and a, cousin of the widow of Raman Chetty and another is plaintiff's partner and nephew. Plaintiff had been an agent of the firm and knew that it had been declining in prosperity since the death of Raman Chetty in 1909. Exhibit E moreover was executed just after fifth to fifteenth defendants, the contesting respondents, other creditors of the firm, who eventually obtained a decree against if for a little over Rs. 30,000, interest, and costs had at an earlier stage in their suit obtained a conditional order of attachment before judgment, of which plaintiff and the creditors may be supposed to have been aware, although the attachment was never actually made and, it may be added, is not relied on as invalidating this alienation. On these facts there is no doubt that the lower Court was justified in imposing the burden of proof of the substantial character and good faith of Exhibit E on plaintiff.

That, however, did not entitle the lower Court to require him, as it has done in respect of the greater part of the consideration and on other parts of the casts, to discharge that burden with unreasonable strictness or to criticise his attempts to do so perversely.

[His Lordship then dealt with the evidence and concluded as follows:]

The conclusion must therefore be that consideration passed for Exhibit Except this small item, of Rs. 1,800; and fifth to tenth defendants' case, that the document was a mere pretence and that there was no intention to create rights by means of it, must fail.

To turn to the application of section 53, Transfer of Property Act, there is no doubt no definite evidence of the existence of any creditor besides fifth to tenth defendants and those who have been paid by Exhibit E. The suspicions of the lower Court, based on the dates of the purchase of stamp papers and the, 12 per cent rate of interest, which it thought oppressive, but which is in fact high but not exceptional, have not been shown to be well founded. We have then no doubt a transaction which exhausted the executants' assets for the sole benefit of some only of their creditors, including, it is true, three close relatives of whom one brought it about at a time of pressure on the estate. But, there being no question of insolvency, that is not sufficient. For, to follow the latest authority, Musahar Sahu v. Lola Hakim Lal, although Exhibit E prefers some creditors to others, it is not an instrument which removes property from the creditors to the benefit of the debtor and, after the foregoing findings, there is no ground for impeaching it in the fact that the fifth to tenth defendants, creditors, were losers by payment being made to a preferred creditor, the plaintiff. On the merits, therefore, plaintiff is entitled to succeed.

Fifth to tenth defendants have, however, resisted his claim on another ground. Reference has already been made to the fact that, although a conditional attachment before judgment was ordered, none was actually made. This is said to have been due to delay in payment of fees. But neither plaintiff nor fifth to tenth defendants were, so far as appears, aware of the fact; and the latter proceeded, as though there had been an attachment, to obtain issue of a sale proclamation whilst the former, in Exhibit, VI, claimed under Order XXI, rule 62, Civil Procedure Code, a declaration that the sale should be subject to Exhibit E. Thereon, without reference by the Court or the parties to the absence of an attachment, plaintiff's claim was disallowed under Exhibit VI(a) on 15th April 1912. A sale was held and delivery was given, as Exhibit VII shows, on 2nd January 1913. As to plaintiff's next step, the only information before us is given by his present plaint, that he brought Original Suit No. 56 of 1913 for a declaration that the sale should be subject to his mortgage right. Whether this suit was brought within one year of Exhibit VI(a) and whether plaintiff would have been advised to ask for leave to amend and include a prayer for other reliefs in it is not clear. But in any case he withdrew it, obtaining leave in Exhibit AA to sue again, and he then brought the present suit for recovery by sale on his mortgage on 7th October 1915. Fifth to tenth defendants contend that as this suit is brought one year after Exhibit VI(a) it is barred under article 11, schedule 1, Limitation Act, the rejection of the claim having become final under Order XXI, rule 63.

The suggestion that Exhibit AA is a recognition, binding on the lower or this Court of plaintiff's right to bring his present suit can be dismissed shortly, because such recognition is not entailed by the wording of that order and would not have been within the power of the Court which passed it. So also the lower Court's ground of decision that with reference to Bhiku v. Shujat Ali and Ganesh v. Damoo, article 11 is not applicable to plaintiffs suit, brought to recover a debt on the security of the property, not to establish any right in it. For in the first of these cases the question was not of a ordinary claim petition, based like Exhibit VI on a mortgage, but of a petition to remove obstruction to delivery under, section 835 of the Code then in force, corresponding with Order XXI, rules 100, 101 and there was nothing to bar the subsequent suit so far as it related to a different relief, the recovery of the sums due, which was asked for in the alternative and which the Court considered. The second authority relied on proceeded on the grounds, first, that the order in question was not on a claim, but was passed under section 287, corresponding with Order XXI, rule 66; and, next, that an order, refusing to recognize a mortgage and continuing an attachment free from it is not one which must be displaced by the suit contemplated in article 11. But the latter conclusion is opposed to Nemaganda v. Paresha, which with all deference is not susceptible of the explanation proposed in the decision under consideration; and it is impossible to understand how an order disallowing in toto the mortgago right claimed is not as essentially an adverse order of the kind contemplated in Order XXI, rule 63, as one continuing the attachment subject to the mortgage instead of releasing it altogether.

The more serious argument for plaintiff is however that, as there was in fact no attachment, the claim proceedings were founded on a mistake of the Court and both parties and therefore had no legal effect or resulted at most in an order which may have been a ???, since it was not one contemplated, by the Code, and was in any case not subject to Order XXI, rule 63 or article 11; and it is suggested further that, as plaintiff was induced by fifth to tenth defendants' misrepresentation, even if it was unintentional, to embark an this course of procedure, the latter cannot benefit by the prejudice which results from their own conduct. This suggestion, however, is untenable. Plaintiff, no doubt, may have inferred from the sale proclamation issued at fifth to tenth defendants' instance, which he mentioned in Exhibit VI, that there had been an attachment in the ordinary course. But there is no question of fraud on their part and, when it was open to him to verify his inference by enquiry and he failed to do so, the fault was his own. In consequence of this failure he thought himself entitled to choose the cheap and speedy remedy afforded by the claim procedure in preference to the ordinary suit, subject to no special imitation, by which alone he could otherwise have proceeded; and he presumably had regard to his own advantage in his choice. Fifth to tenth defendants' subsequent omission to plead that there was no attachment, was not an invitation to plaintiff to continue in the course he was taking, but merely an acquiescence in his doing so, by the consequences of which they would squally with him have been bound if the result on the merits had been against them. The fact is simply that, plaintiff having submitted his claim to the Court in circumstances which did not strictly, authorize his doing so, and fifth to tenth defendants having waived an abjection on which they might have relied, both gave in implied consent to the investigation proceeding.

The principle applicable to such cases was stated generally by Bowen, L.J, in Ex parta Pratt as being that no one has a right so to conduct himself before a tribunal, as if he accepted its jurisdiction, and then afterwards, when he finds that it has decided against him to turn round and say “you have no jurisdiction.” This no doubt is subject to exceptions, those with which we are at present concerned being, to adopt the description of them in Pisani v. Attorney-General far Gibralter, that departures from ordinary practice by consent will not nullify the proceedings or divorce them from the ordinary incidents of procedure (in that case a right of appeal) “unless there is an attempt to give the Court a jurisdiction, which it does not possess, or something occurs, which is such a violent strain on its procedure that it puts it entirely out of its course.” It was held accordingly in Toronto Railway v. Toronto Corporation, and Deno Nath Batabyal v. Ndhor Chunder Sett, that the parties consent did not enable the Court to deal with issues outside the scope of its statutory powers; and in Ex parte Pratt already referred to, Ex parte May and Vislinu Sakharam Nagarkar v. Krishnarao Malhar, that, the opposite case, where jurisdiction over the subject matter exists, requiring only to be invoked in the right way, the party who invited or allowed the Court to exercise it in the wrong way cannot afterwards challenge the legality of the proceedings due to his own invitation or neglect. One instance of entire diversion of the Court's procedure from its course may be given, because it is significant in the present connexion. In Jay Prokash Singh v. Abhny Kumai Chund(7), claim proceedings without a preceding attachment were treated as a nullity, not on any ground such as plaintiff here relies on, but because the decree under execution was for sale on a mortgage and recognition of a claim would pro tanto have deprived the mortgage decree of its effect otherwise than in the regular suit contemplated by the law.

It is clear that plaintiff's resort to the claim procedure in the present case is within neither of these classes of exceptions. For it did not result in any entire diversion of the course of procedure but only in the selection of one of two procedures which were available instead of the other, and there has been no attempt to give the Court a jurisdiction which it did not possess, since its general power to deal with claims is not disputed. It is urged on the latter point that reference to its general power is an insufficient ground of decision because that power is not general or inherent, but derived only from statutory provisions and must be exercised only in accordance with them; that is, in the event specified in Order XXI, rule 58(1), of an attachment having been made. But a similar objection was, it is to be observed, available in Ex parte Pratt, Ex parte May and Vishnu Sakharam Nagarkar v. Krishnarao Malhar, already referred to, and the fact that statutory powers were in question was not considered. In Angan Lal v. Gudaramal, an order appropriate to a claim petition was no doubt set aside on the ground, among others, that there had been no attachment. But the facts there were peculiar, since there had been no submission by both parties to the Court following the claim procedure and the Court entered on it in disregard of the petitioners' averments. In fact, cases of mistake and acquiescence such as plaintiff's must be rare, since the absence of an attachment will seldom be overlooked in the first instance or when evidence is adduced under rule 59. But in dealing with them it must be remembered that in accordance with Sheodhyan v. Bholanath and Sivakolundu Pillai v. Ganapathy Iyer, the absence of an attachment will not make a Court sale illegal as between the parties to it and persons like plaintiff whose interest is affected by it is merely an irregularity, on account of which the sale can under Order XXI, rule 90, on proof of substantial injury be set aside on their application; and the reason is, as the former decision explains, that the object of attachment is only to bring the property under the control of the Court in order to prevent its alienation, the actual proclamation being the notice to the public that the sale is to take place. This is so in spite of the explicit reference to attachment in Order XXI, rule 64; and it is not necessary or possible to regard attachment, where it is similarly referred to in Order XXI, rule 58, as essential to the jurisdiction of the Court. For there also the existence or absence of a previous prohibition against alienation by the judgment-debtor cannot affect the Court's power to deal with the claims of those who like plaintiff, have notice from the proclamation that their rights are in peril; and accordingly, whether or no there has been an attachment, they are, if they submit the merits of their claims to the Court for investigation, equally persons against whom an order is passed, which under Order XXI, rule 63, will become final, if it is not displaced.

In these circumstances the conclusion must be that article II, schedule 1, Limitation Act and Order XXI, rale 60, apply. The Appeal must therefore be dismissed with costs of tenth to thirteenth respondents.

Ramesam, J.:— I agree and have nothing to add.

K.R