Judgment :- 1. The 1st defendant is the appellant. The plaintiff is the wife of the 2nd defendant. They had executed a promissory note in favour of the 1st defendant. For the amount due thereunder he filed case No. 157 of 1109 in the Village Panchayat Court, Attingal and obtained a decree. The decree was got transferred to the Munsiff's Court, Attingal where the plaint property was proceeded against for the realisation of the amount. It was described that the property belonged to the 1st defendant in that case. The property was sold and purchased by the decree-holder. The plaintiff then intervened in and stated that though the property originally belonged to the 1st defendant he had executed a mortgage in her favour on 22.10.1107, that she had constructed a building described as item 2 in the plaint with her own funds, that she was in possession of the property and the building and that the auction purchaser was not entitled to get delivery of possession. This petition was enquired into and dismissed. An appeal CMA 33 of 1116 filed against that order was also dismissed by the District Court. The plaintiff has now brought the present suit for a declaration that the orders passed by the execution court and the appellate court were invalid and liable to be set aside and that the plaintiff's title and possession of the property should be declared. 2. The 1st defendant contended that the suit was not maintainable, that it was barred by res judicata by virtue of the proceedings before the execution court and the appellate court, that the present plaintiff was the 2nd defendant in that case, that the mortgage deed of 1107 was benami and in fraud of the creditors of the 2nd defendant and not supported by consideration, that the plaintiff derived no title or possession under it, that the 2nd defendant had himself constructed the building with his money and rented it out and that the execution proceedings were not liable to be set aside. 3. 3. The courts below found that the present suit was maintainable, that it was not barred by res judicata by the orders of the execution court and the appellate court, that the attachment effected in execution of that decree would only be subject to the mortgage right of the plaintiff, that the mortgage deed was valid and operative and that the plaintiff was entitled to a decree as prayed for. 4. The plaintiff was admittedly the 2nd defendant in case No. 157 of 1109. The decree was on a promissory note executed by her and her husband who is the present 2nd defendant. It has to be taken that notice in execution of that decree must have been served on both the defendants, for there is no evidence to the contrary in this case. It was true that the execution proceeded as if the property belonged exclusively to the 1st defendant in that case. The present plaintiff intervened in execution after the sale and it was a matter relating to execution between the decree-holder and the judgment-debtor in that case. It was also so treated by the parties for when an adverse order was passed against the present plaintiff in that case, she took up the matter in appeal to the District Court. The District Court in its order Ext. III found that the mortgage in favour of the plaintiff was benami and that it was a sham document. Ext. III is not an order on an obstruction petition. But it is an order passed on a motion made by a party to the decree against the decree-holder in that case, so that, that order will certainly be binding on the parties. As that order will also operate as res judicata the present suit is not maintainable. The decision in Kanhairem v. Kalicharan reported in AIR 1926, Nagpur 68 related to a case when execution was pushed through only against one of two judgment-debtors. It was therefore held that any order passed under such circumstances would not be binding on the judgment-debtor who was not proceeded against. The decision in Lachmi Narain v. Robati Dobya, reported at page 376 of AIR 1925 Patna is also to the same effect. It was therefore held that any order passed under such circumstances would not be binding on the judgment-debtor who was not proceeded against. The decision in Lachmi Narain v. Robati Dobya, reported at page 376 of AIR 1925 Patna is also to the same effect. Hence the above two decisions are not authorities for the position that when execution is taken against both the debtors, describing the property, proceeded against, as belonging to one of them, the proceedings would be binding on both of them though the other debtor had some separate interest over the property proceeded against. The decisions passed by the courts below are therefore wrong and they are set aside. 5. In the result, the appeal is allowed and the plaintiff's suit is dismissed with costs throughout. Allowed.