JUDGMENT : WALSH, J.:— In the year 1904 one Ishwari Prasad sold certain property, portions of which are now in question in this suit, to one Khub Chand, The price was Rs. 1,500. A sum of Rs. 250 was paid in cash and Rs. 1,250 was “left in the hands” of the purchaser, Khub Chand, to be paid to one Debi Sahai, a mortgagee of this and other property belonging to Ishwari Prasad. This designation seems to be more a matter of courtesy than to have any relation to the actual facts of the case. From the subsequent history of the property and the transactions which we have had to enquire into, it would seem highly likely that there was no money of any kind to be left in any body's hands. At any rate the parties to this suit and some of their predecessors now deceased appear to have been engaged for the last fifteen years in trying to find out where the money is. Of course if it existed it ought to have been paid to Debi Sahai. It was not, and it appears that he had to sue and eventually obtained a decree for a sum of Rs. 785 in respect of which some of the property sold to Khub Chand was sold. No body really knows what happened to the balance of his mortgage money or the other security which he held against the property of Ishwari Prasad. Ishwari Prasad had many creditors including the present plaintiff and one Babu Lal. Babu Lal wanted his money. He had obtained a decree against Ishwari Prasad and he went to court with a view to attaching this money, if it existed, in the hands of Khub Chand. That application was successfully objected to, it being held as a matter of fact that the money had been paid either to Ishwari Prasad or to the mortgagee and that there was no debt left to be attached. Babu Lal brought no suit within a year such as Order XXI, rule 63, enables a person to do who has failed in his summary application. The present plaintiff however who was also a creditor brought a suit for a declaratory decree that he was entitled to attach this sum and won it. 2. Babu Lal brought no suit within a year such as Order XXI, rule 63, enables a person to do who has failed in his summary application. The present plaintiff however who was also a creditor brought a suit for a declaratory decree that he was entitled to attach this sum and won it. 2. In that suit he obtained a decree from this Court which is said to have been inconsistent with some ruling of the Privy Council. However that may be whether for that or for some other reason which to me is a complete mystery, the present plaintiff was not prepared to rest on that decree, but at some subsequent date he purchased from Babu Lal the right that Babu Lal had established to attach this sum in realisation of his debt against Ishwari Prasad. How in the world Babu Lal succeeded, as he undoubtedly did in obtaining a summary order upon a fresh application when his original application in 1911 had been dismissed is another of the mysteries in this case. But there is no doubt that he did obtain an order and that in execution of such order he sold his rights to the present plaintiff. Having regard to the frame of the present suit, and particularly to paragraph 4 of the plaint, we think that the present plaintiff must be taken to stand in the shoes of Babu Lal as assignee or purchaser of his (Babu Lal's) interest in the claim which Ishwari Prasad had against Khub Chand or his relatives. The District Judge held that the order which had been passed against Babu Lal in April, 1911, allowing the objection and dismissing his application was a fatal objection to this suit either by Babu Lal or by the present plaintiff as his assignee. There is a great deal to be said for the very able argument presented against this view on behalf of the appellant by Dr. Sulaiman, namely, that, having regard to the decisions Durgaram Roy v. Raja Narsing Deb, [1900] 2 B.L.R., 254, and Chintamani Sen v. Ishwar Chandra, [1901] 3 B.L.R., 122, and particularly the judgment of Me. There is a great deal to be said for the very able argument presented against this view on behalf of the appellant by Dr. Sulaiman, namely, that, having regard to the decisions Durgaram Roy v. Raja Narsing Deb, [1900] 2 B.L.R., 254, and Chintamani Sen v. Ishwar Chandra, [1901] 3 B.L.R., 122, and particularly the judgment of Me. Justice Jackson therein both of which cases seem to have been cited with approval in Aukhil Chander Chowdhry v. Mirza Dilawar Husain, 6 C.L.R., 93., the correct view is that although one of several creditors may fail in his original application and refrain from bringing a suit within a year as he is entitled to, nonetheless if another creditor at a later stage brings a declaratory suit such as the original unsuccessful creditor might have brought and succeeds in such suit in getting rid of the objection the judgment in such declaratory suit, is in the nature of a judgment in rem, and enures for the benefit of all the other creditors including even a creditor such as Babu Lal who had failed and had refrained from bringing the suit. But the view to which I have ultimately come in this case renders it unnecessary for me to express a final opinion whether this is or is not a correct view. On the one hand it would seem inconsistent with the express provision in the Code; on the other hand there is authority to support it of long standing under similar provisions of Act VIII of 1859 and no authority to the contrary. I have come to the conclusion on the whole and with considerable hesitation that there is a fatal objection to the suit. The right which the plaintiff is asserting is undoubtedly a right derived by him from Babu Lal through his purchase at the auction of Babu Lal's interest in enforcing the order of attachment which he had obtained on his second application. Such right undoubtedly was to receive the money in the hands of Khub Chand or to enforce against Khub Chand such right or remedy in respect of the money as Ishwari Prasad had. I am not satisfied on the facts as found that Ishwari Prasad had any right. He certainly had no claim in debt. From the time when he authorised the payment of the Rs. I am not satisfied on the facts as found that Ishwari Prasad had any right. He certainly had no claim in debt. From the time when he authorised the payment of the Rs. 1,250 to the mortgagee he put it out of his power to sue Khub Chand for that sum, and to establish a claim in debt or, to put it in another way, an actual personal proprietary interest in the money in the hands of Khub Chand it would have to be shown that the mortgagee either had been paid off or consented to the money being paid to Ishwari Prasad. But in fact the claim is not made in that form. It is deliberately made as a claim for a charge which, in the nature of a lien, is given to an unpaid vendor in respect of the property in the hands of the buyer by section 55, sub-section 4 of the Transfer of Property Act, and the plaint is so framed and the relief sought is for the sale of the property upon which such lien is imposed by the statute. To sum up therefore I think the legal position of the plaintiff is that of an assignee of a person, namely, Babu Lal, who had a right in the absence of any definite fund which his order of attachment enabled him to lay his hands upon, to enforce such right by a claim for a lien or charge upon the property. I think such a right can only be described by the language used in section 6, sub-section (e) of the Transfer of Property Act, and that it is a mere right to sue, and that therefore that was all that the plaintiff purchased from Babu Lal and that he got nothing by his purchase and that his suit being based upon Babu Lal's auction sale to him it must fail on that ground alone. So far as the respondent No. 6 is concerned he is merely a transferee of a portion of the property originally sold to Khub Chand upon which this lien attached and in any event he must succeed upon the recent authority of a Bench of two Judges of this Court in Gurdayal Singh v. Karam Singh, [1916] 14 A.L.J.R., 304. So far as the respondent No. 6 is concerned he is merely a transferee of a portion of the property originally sold to Khub Chand upon which this lien attached and in any event he must succeed upon the recent authority of a Bench of two Judges of this Court in Gurdayal Singh v. Karam Singh, [1916] 14 A.L.J.R., 304. On this ground not without some hesitation I come to the conclusion that the appeal against each respondent must be dismissed with costs. Each set of respondents will get separate costs. RYVES, J.:— I agree generally, but I think it would be enough to hold that the view of the learned Additional District Judge on the meaning of Rule LXIII of Order 21 is sufficient to dispose of the appeal. According to that rule, subject to any suit, the order of the executing court disallowing the application for execution shall be conclusive. In this case it is admitted that Babu Lal never brought a suit to get rid of the order against him. It seems to me that this is a fatal objection for the present suit. I therefore agree in the order proposed. 3. By the Court.— The appeal against each respondent is dismissed with costs. Each set of respondents will get separate costs. 4. Appeal dismissed.