Sadasivam, J.- These appeals have been preferred by the defendant and the plaintiff in O.S. No. 43 of 1962, on the file of the Subordinate Judge’s Court, Devakottai, against the decree and judgment therein in so far as they are against each of them. The suit was filed by the plaintiff Visalakshi Achi for recovery of Rs. 26,034.09 being the principal and interest due on the mortgage deed, Exhibit A-1, dated 28th December, 1965 executed by her husband, the deceased Perichiappa alias Kasi Chettiar in her favour for Rs. 21,400. It is clear from the mortgage deed, as well as the averments in the plaint, that it was executed in discharge of two deposit letters, Exhibits A-4 and A-6, dated 13th November, 1955 for Rs. 8,006-12-6 and Rs. 13,435-2-3 respectively. It is clear from the recitals in Exhibit A-6 and the evidence that it was executed in discharge of an earlier deposit letter Exhibit A-2, dated 2nd April, 1947 executed by Kasi Chettiar in favour of the plaintiff. In respect of these specific recitals in paragraph 5 of the plaint about the deposit letters Exhibit A-4 and A-6, the only plea of the defendant in his written statement is that the recitals of consideration in the mortgage deed are fictitious and false, that the plaintiff and her father had no means to enable the plaintiff to deposit moneys with her. husband and that he denies that any money of the plaintiff was deposited with her husband Kasi Chettiar. P.W.1, Chinniah Chettiar, is the. nearest pangali of Kasi Chettiar. He has attested the suit mortgage Exhibit A-1. He stated that the deposit letter Exhibit A-2 was written and signed by Kasi Chettiar. But he admitted in cross-examination that he was not present at the time of the writing of Exhibit A-2. In fact, the plaintiff admitted in cross-examination that at the time of writing of Exhibit A-2, no other adult was present except the writer. D.W.1, Venkatachalam Chettiar, admitted in cross-examination that the handwriting in Exhibit A-2 is that of his father-in-law Kasi Chettiar. P.W.1, Chinniah Chettiar, has attested the endorsement of discharge Exhibit A-3 made on Exhibit A-2, when it was discharged by the execution of Exhibit A-6. P.W.1 has attested Exhibit A-6. On the same date, Kasi Chettiar executed Exhibit A-4 and it was also attested by P.W.1. P.W.1, Chinniah Chettiar, has attested the endorsement of discharge Exhibit A-3 made on Exhibit A-2, when it was discharged by the execution of Exhibit A-6. P.W.1 has attested Exhibit A-6. On the same date, Kasi Chettiar executed Exhibit A-4 and it was also attested by P.W.1. Exhibit A-5 and A-7 are the endorsements made on Exhibits A-4 and A-6 respectively when they were discharged by the execution of the suit mortgage Exhibit A-1. P.W.1 denied the suggestion Exhibits A-4 and 6 were got up to support the recitals in Exhibit A-1. But it should be noted that there is no plea in the written statement of the defendant that Exhibits’ A-4 and A-6 are ante-dated documents. The execution of Exhibits A-4 and A-6 has been proved by the evidence of P.W.1, Chinniah Chettiar, who has attested them, and it corroborates the evidence of the plaintiff. 2. The defendant Arunachalam Chettiar, is the brother of the second wife of Kasi Chettiar and he purchased the hypotheca in a Court auction sale held in execution of the decree in O.S. No. 13 of 1960, on the file of the District Munsif’s Court, Devakottai, subject to the suit mortgage. His plea is that the suit mortgage is not supported by consideration. We have already referred to his plea that neither the plaintiff nor her parents had means to deposit moneys with Kasi Chettiar. P.W.1 has stated in cross-examination that the plaintiff’s parents have properties and that they have a house worth Rs. 50,000 at Puduvayal, which is still in tact. The defendant and his witness D.W.1 went to the extent of stating that the house of the plaintiff’s father was worth only Rs. 5,000. But no such suggestion was made to P.W.1. P.W.2, Visalakshi, the plaintiff, stated that her father’s house was worth Rs. 50,000 and she denied the suggestion that it was worth only Rs. 5,000. The plaintiff deposed that her mother gave seventy-Jive varagans of gold bar from her ‘kalathuru’ about 20 to 22 years prior to this case, when her father died. It should be noted that kalathuru is a jewel consisting gold beads of various shapes to which the thali is attached. It is therefore quite probable that, when the plaintiff’s mother became a widow, she parted with seventy-five varagans of gold bars from her kaluthuru and this has been accepted by the learned trial Judge. It should be noted that kalathuru is a jewel consisting gold beads of various shapes to which the thali is attached. It is therefore quite probable that, when the plaintiff’s mother became a widow, she parted with seventy-five varagans of gold bars from her kaluthuru and this has been accepted by the learned trial Judge. The plaintiff deposed that her husband paid Rs. 10,300 to her father at the time of her marriage and also gave her diamond kandasaram, diamond chitti, diamond rings, diamond honnappu (ear-rings), diamond nose screw and a diamond thali besides 3 pairs of gold bangles and a kalathurai of 200 varahan. She stated that the jewels were then worth Rs. 20,000. She stated that her father gave her Rs. 1,300 as stridhanam, two gold thalis, one pair of kappu kolusu and silver samans worth Rs. 10,000. It is true she pleaded ignorance whether her husband gave her only the jewels of his second wife at the time of marriage. D.W.1, Venkata-chalam Chettiar has married the daughter of Kasi Chettiar through his second wife. Kasi Chettiar married the plaintiff as his third wife, after the death of his second wife. The learned trial Judge has rightly observed that when Kasi Chettiar, an old man, married the plaintiff as his third wife, he would have naturally given her jewels. Kasi Chettiar had a flourishing business at that time. In fact, the evidence of the defendant himself is that Kasi Chettiar gave Rs. 10,500 to the plaintiff’s father for marrying the plaintiff. The defendant did not deny the fact that Kasi Chettiar gave jewels to the plaintiff at the time of her marriage. But his plea is that his sister’s diamond jewels were given to the plaintiff by Kasi Chettiar at the time of the marriage. But in cross-examination he admitted that his father-in-law gave jewels to P.W. 2. But he added that his father-in-law told him that his second wife’s diamond jewels were used by the plaintiff. According to the defendant, Kasi Chettiar did not give jewels to his second wife and that his family gave jewels to his sister, the second wife of Kasi Chettiar. But he did not ascertain what happened to the jewels of his sister. According to the defendant, Kasi Chettiar did not give jewels to his second wife and that his family gave jewels to his sister, the second wife of Kasi Chettiar. But he did not ascertain what happened to the jewels of his sister. It is significant to note that in respect of the Kalathuru owned by the second wife of Kasi Chettiar, a claim was made on the plaintiff and she parted with Rs. 2,000, as evidenced by Exhibit A-13. If really the diamond jewels of the second wife of Kasi Chettiar had remained with the plaintiff, it is unlikely that the daughter of the second wife of Kasi Chettiar would have failed to make a claim in respect of the same. D.W. 1, Venkatachalam Chettiar, is the son-in-law and D.W. 2, Arunachalam Chettiar is the brother of the second wife of Kasi Chettiar and they would not have kept quiet without taking steps to recover the valuable jewels of the second wife of Kasi Chettiar. D.W.1, Venkatachalam Chettiar, married, the daughter of Kasi Chettiar through his second wife ten years after the plaintiff’s marriage. His mother-in-law died long prior to his marriage and he does not know personally about the jewels worn by her. D.W.2, Arunachalam Chettiar, the defendant in the suit, admitted that two or three days prior to his sister’s daughter’s marriage, Kasi Chettiar filed a complaint to the police against him accusing him of having misappropriated his sister’s moneys. The plaintiff had Bank accounts and she claims to have given her moneys to her husband. Both D.Ws.1 and 2 stated that the plaintiff had no moneys of her own to be given to her husband. But they pleaded ignorance if the plaintiff had Bank accounts. In fact, D.W.1, stated in cross-examination that he did not know if the plaintiff had her own moneys. In these circumstances, it is impossible to rely on the evidence of the defendant and his witness, that the plaintiff had no means to advance loans to her husband and that the suit mortgage is therefore not supported by consideration. 3. It is clear from the recitals in Exhibit A-4 that Kasi Chettiar received various amounts on different dates and that on the date of Exhibit A-4, the amount owed by him to the plaintiff came to Rs. 8,006-12-6. Out of this amount, a sum of Rs. 3. It is clear from the recitals in Exhibit A-4 that Kasi Chettiar received various amounts on different dates and that on the date of Exhibit A-4, the amount owed by him to the plaintiff came to Rs. 8,006-12-6. Out of this amount, a sum of Rs. 1,800 represents the value of 24 sovereigns belonging to the plaintiff and the balance represents amounts withdrawn on various dates from the account of the plaintiff in the Indian Bank, Karaikudi. The plaintiff has produced her pass book, Exhibit A-9. She has also produced the discharged promissory note Exhibit A-10 executed by her in favour of the Indian Bank and the letter Exhibit A-11 sent by the Bank to her acknowledging the receipt of pass book and cheques to secure the loan and the credit slip Exhibit A-12 sent by the Bank. The learned trial Judge has rightly believed the evidence of the plaintiff that the moneys belonged to her and that she had drawn the moneys and paid them to her husband, as acknowledged by Kasi Chettiar in the deposit letter Exhibit A-4. He also accepted the evidence of the plaintiff that she got 75 varahans of gold bars from her mother at the time of her father’s death and we have already referred to it. Thus there can be no doubt about the truth of the recitals in Exhibit A-4. We see no sufficient ground to differ from the finding of the trial Court that the entire consideration under Exhibit A-4 had passed. 4. We have already referred to the fact that Exhibit A-6 was executed by Kasi Chettiar in discharge of the earlier deposit letter Exhibit A-2. The learned Subordinate Judge has in paragraph 12 of his judgment found that Exhibit A-2 is supported by consideration to the extent of only Rs. 3,300 made up of the values of diamond thodus and diamond chitti. He found that the plaintiff had failed to prove that the diamond kandasaram belonged to her and in this view he held that Exhibit A-2 was not supported by consideration to the extent of Rs. 7,000 being the value of the said jewel. 3,300 made up of the values of diamond thodus and diamond chitti. He found that the plaintiff had failed to prove that the diamond kandasaram belonged to her and in this view he held that Exhibit A-2 was not supported by consideration to the extent of Rs. 7,000 being the value of the said jewel. The plea of the defendant in ground No. 8 of the grounds of appeal is that the learned Judge after having held that in so far as the kandasaram was concerned it did not belong to the plaintiff, he ought to have held that the other jewels also stood in the same position and that the plaintiff Would not have parted with them or sold them for the purpose of lending moneys to her husband. The plaintiff has given clear evidence that her husband presented her diamond thodus, diamond chittis, diamond Kandasaram etc., at the time of her marriage. It is true she pleaded ignorance whether the jewels belonged to the second wife of her husband. But it is clear from her evidence that normally she used to wear all the diamond jewels, except kandasaram and chitti which she used to wear occasionally. She deposed that the jewels were sold by her husband through his second son-in-law. D.W.1, Venkatachalam Chettiar stated that he does not know about his father-in-law having sold diamond jewels. But he admitted in cross-examination that the handwriting in Exhibit A-2 was that of his father-in-law, and that the letters T.V.T.V mentioned in Exhibit A-2 represent his vilasam. He denied the suggestion that he had any diamond business. There is no motive for Kasi Chettiar to make false averments in Exhibit A-2 about the sale of diamond jewels. It is clear from the evidence of the defendant that his sister’s son and daughter have got letters from Kasi Chettiar for their mother’s stridana amount and Kaluthuru Panam and that in respect of these kaieluthu letters decrees were obtained. D.W.1 also referred to the decrees obtained by his wife. There is therefore nothing strange in Kasi Chettiar having executed the deposit letters for the amounts due to the plaintiff by reason of his having utilised her jewels for his own purpose. It is true the deposit letter Exhibit A-2 was not brought into existence at the time of the sale of the jewels, but only subsequently. There is therefore nothing strange in Kasi Chettiar having executed the deposit letters for the amounts due to the plaintiff by reason of his having utilised her jewels for his own purpose. It is true the deposit letter Exhibit A-2 was not brought into existence at the time of the sale of the jewels, but only subsequently. The evidence of the plaintiff is that at the time of Exhibit A-2 she Wanted her husband to give her some document or voucherfor the amounts due to her and that her husband gave the deposit letter Exhibit A-2. We concur with the finding of the trial Court that Kasi Chettiar sold the diamond thodu of the plaintiff for Rs. 2,000 and the diamond chitti of the plaintiff for Rs. 1,300. 5. The only remaining question to be considered in this context is whether the finding of the learned Subordinate Judge that the plaintiff has not proved that she owned the diamond kandasaram and that Exhibit A-2 is not supported by consideration to the extent of Rs. 7,000 being the value of the said jewels, is correct. The learned Subordinate Judge has observed that it is probable that the diamond Kandasaram belonged to the defendant’s sister. He has pointed out that it may not be possible for the parties to adduce clinching documentary evidence regarding the jewels made for the plaintiff and the jewels made for the second wife of Kasi Chettiar. According to the trial Judge, if really the kandasaram belonged to the plaintiff she would never have been willing to sell it for the payment of her husband’s debts. We are unable to follow the reasoning. If the plaintiff was willing to sell her diamond jewels which she used to wear every day to help her husband to discharge his debts, there is no reason why she should not part with the kandasaram which she used to wear only occasionally. The learned Subordinate Judge has stated that D.W.1 and D.W.2 asserts that the kandasaram belonged only to Kasi Chettiar’s second wife and that he is inclined to believe their version. But neither D.W.1 nor D.W.2 has stated that the diamond kandasaram belonged to the second wife of Kasi Chettiar. The plaintiff gave clear evidence that her husband gave her a diamond kandasaram, diamond thodu, diamond chitti etc. D.Ws.1 and 2 were examined several days after the examination of the plaintiff. But neither D.W.1 nor D.W.2 has stated that the diamond kandasaram belonged to the second wife of Kasi Chettiar. The plaintiff gave clear evidence that her husband gave her a diamond kandasaram, diamond thodu, diamond chitti etc. D.Ws.1 and 2 were examined several days after the examination of the plaintiff. D.W.1 stated that he was told that his mother-in-law had diamond thodu, diamond thali, diamond nose screw, diamond ring, honnappu and vaira addigai. D.W.2, the defendant, deposed that his sister had diamond thodus, diamond nose screws diamond attial, diamond karadu, honnappu, diamond rings, diamond thali, jodipu and that his family made the jewels. Thus they have not referred to the diamond kandasaram at all. The learned Advocate for the defendant argued that the diamond addigai refers to diamond kandasaram. It is true both the jewels are neck ornaments, but there is a distinction between these jewels. Further, D.W.1 Venkatachalam Chettiar does not know personally about his mother-in-law owning or wearing the jewels, as she died long prior to his marriage with her daughter. The evidence of D.W.2 is that it was his family that gave the jewles to his sister at the time of her marriage and not that Kasi Ghettiar gave any jewels to his sister. If really the diamond kandasaram belonged to the sister of the defendant, it is unlikely that the daugther of the second wife of Kasi Ghettiar would have failed to make a claim for the same. The defendant admitted in cross-examination that he did not ascertain what happened to the jewels of his sister. This conduct is hardly consistent with the fact that his sister owned the diamond kandasaram and the other jewels as claimed by him. Further we have already referred to the fact that in respect of the less costly jewel namely, kalathuru owned by the second wife of Kasi Ghettiar, the daughter of the second wife of Kasi Chettiar, had received Rs. 2,000 from the plaintiff at the time of her daughter’s marraige and gave the receipt Exhibit A-13 and it was attested by the son of Kasi Chettiar through his second wife. The learned Subordinate Judge has not adverted to these important facts and circumstances of the case. In fact, there was no motive for Kasi Chettiar to make a false recital in Exhibit A-2 that he sold a diamond necklace (kandasaram) belonging to the plaintiff. The learned Subordinate Judge has not adverted to these important facts and circumstances of the case. In fact, there was no motive for Kasi Chettiar to make a false recital in Exhibit A-2 that he sold a diamond necklace (kandasaram) belonging to the plaintiff. We, therefore, set aside the finding of the learned Subordinate Judge that the diamond kandasaram did not belong to the plaintiff. 6. Even if it is assumed that Kasi Chettiar gave a diamond kandasaram not belonging to him to the plaintiff at the time of her marriage to fulfil any ante-marriage agreement and he subsequently took away that jewel, it could not be said that Exhibit A-2 is not supported by consideration to the extent of the value of the jewel, mentioned in it. Kasi Chettiar was only fulfilling his obligation to give her a diamond kandasaram when he agreed to give the price of it under Exhibit A-2. For the foregoing reasons, we find that Exhibit A-2 is fully supported by consideration. We have already referred to the fact that Exhibit A-6 was executed by Kasi Chettiar in discharge of his liability under Exhibit A-2. 7. Sri R. Gopalaswamy Iyengar for the defendant commented on the fact that the account books of Kasi Chettiar have not been produced to prove the truth of the deposit letters Exhibits A-2, 4 and 6. The evidence of the plaintiff is that at the time when Exhibit A-4 and 6 were written, accounts were looked into. She stated that the accounts were written by the accountant Ramaswami Pillai. It is true she does not know whether the accounts were in bound books or in slips. She stated that the account books were in the house and that she did not take any of them. She denied the suggestion that she had taken all the account books and records and that she had suppressed the accounts. Kasi Chettiar has left adult sons through his second wife and normally they should have the custody of the accounts Further, the defendent as the Court auction-purchaser has taken delivery of the suit house after evicting the plaintiff. She denied the suggestion that she had taken all the account books and records and that she had suppressed the accounts. Kasi Chettiar has left adult sons through his second wife and normally they should have the custody of the accounts Further, the defendent as the Court auction-purchaser has taken delivery of the suit house after evicting the plaintiff. On account of the manner in which the defendant conducted the suit in the trial Court, the learned Subordinate Judge has observed in paragraph 10 of his judgment that the defendant is fighting the cause of his sister’s children, namely, two sons and daughter of Kasi Chettiar through his second wife. Thus the probabilities are that the account books are with the adult sons of Kasi Chettiar through his second wife. At any rate, there is nothing to show that the plaintiff has custody of the accounts. The defendant has not summoned the account books of Kasi Chettiar from the person in possession of the same evidently as the production of the same will belie his case. There can be no doubt that the deposit letters Exhibits A-4 and A-6 should have been written with the help of the entries in the accounts books kept by Kasi Chettiar, as spoken to by the plaintiff. But the plaintiff is not in possession of the account books and in fact she has not been summoned to produce them. Hence no adverse inference could be drawn against the plaintiff from the mere fact that the account books of Kasi Chettiar have not been produced to corroborate the recitals in the deposit letters, Exhibits A-2, 4 and 6 and the suit mortgage Exhibit A-1. 8. Sri R. Gopalaswamy Iyengar for the defendant commented on the fact that though the suit mortgage Exhibit A-1 was executed in discharge of Exhibits A-4 and A-6, the interest for the period between the date of Exhibits A-4 and A-6, namely, 13th November, 1955, and the date of the suit mortgage 28th December, 1955, has not been taken into account. Evidently, the interest for 1½ months has not been calculated as the creditor and debtor are husband and wife. Evidently, the interest for 1½ months has not been calculated as the creditor and debtor are husband and wife. It is clear from the evidence of the plaintiff that even at the time of the execution of Exhibits A-4 and A-6, she wanted moneys from her husband and her husband stated that he would execute a mortgage for the amounts due to her, that some days later she insisted on the mortgage and got the mortgage. Thus within a few days of Exhibits A-4 andA-6, Kasi Chettiar agreed to execute a mortgage and within six weeks he executed the mortgage Exhibit A-1. If really Exhibits A-4 and A-6 were brought into existence at the time of Exhibit A-1, as suggested to P.W. 1 in cross-examination, the parties would have calculated interest on Exhibits A-4 and 6 upto the date of the mortgage. Thus the circumstance that interest for six weeks on Exhibits A-4 and A-6 has been left out of account, far from throwing any doubt on the truth of the suit mortgage, really goes to support it. 9. The defendant has pleaded in his written statement that Kasi Chettiar was heavily indebted at the time of the suit mortgage and that with a view to defraud, defeat and delay the real creditors and also his sons by his second wife, the suit mortgage was executed by Kasi Chettiar with fictitious and false recitals as to consideration. The plaintiff admitted in cross-examination that she came to know that her husband owed five debts to others, apart from the debt owed to her. She denied the suggestion that Exhibit A-1 was executed to defeat the creditors. Though the defendant stated that the suit mortgage was executed by Kasi Chettiar to defraud his creditors, he admitted in cross-examination that Kasi Chettiar was making payments to his creditors and that no creditor had filed a suit during the lifetime of Kasi Chettiar. In fact, the plaintiff has given evidence that her husband has assigned the insurance policy in her favour about 18 years prior to this case, that deducting the loan, she got Rs. 17,500 about four months after her husband’s death and that she cleared the debts of her husband to the tune of Rs. 6,000. There is therefore absolutely no basis for the contention of the defendant that Exhibit A-1 was executed by Kasi Chettiar to defeat or delay his creditors. 17,500 about four months after her husband’s death and that she cleared the debts of her husband to the tune of Rs. 6,000. There is therefore absolutely no basis for the contention of the defendant that Exhibit A-1 was executed by Kasi Chettiar to defeat or delay his creditors. If really Kasi Chettiar wanted to do so, it is very likely that he would have executed a sale deed in respect of the suit house instead of a mortgage. In fact, it was urged in the trial Court that the suit mortgage was executed secretly at Pudukottai, but this contention was not reiterated in this Court. The learned Subordinate Judge has rightly accepted the evidence of the plaintiff as to the circumstances under which the suit mortgage was executed at Pudukottai where Kasi Chettiar had gone for treatment. For the foregoing reasons, we find that the suit mortgage is fully supported by consideration and it is valid. 10. An untenable contention was urged in the lower Court that the suit mortgage got extinguished as the plaintiff became a heir of Kasi Chettiar. In fairness, it should be stated that this contention was not urged by Sri R. Gopalaswamy Iyengar in this Court. This is not a case where the plaintiff has acquired in whole or in part the share of a mortgagor to invoke the last clause of section 60 of the Transfer of Property Act. There could be extinguishment of a mortgage either com- pletely or in part only if there is merger of title. If the plaintiff had succeeded to the estate of Kasi Chettiar as the sole heir, she could not obviously enforce the mortgage debt due to her against the hypotheca inherited by her absolutely. If the plaintiff inherited a share in the suit property as a heir of her husband Kasi Chettiar, the integrity of the mortgage would have been broken and she would even then be entitled to recover the share of the mortgage (money) payable by the other sharers. It is usual in such cases for the heirs of a person to partition the estate of the deceased after making provision for his debts. It is usual in such cases for the heirs of a person to partition the estate of the deceased after making provision for his debts. Thus if the heirs of Kasi Chettiar effected a partition and the suit hypotheca was allotted to one of the heirs, subject to his discharging the suit mortgage, the heir who gets the property cannot dispute his liability for discharging the mortgage. In this case, the property has been purchased by the defendant in a Court auction sale subject to the suit mortgage and there is therefore no question of the suit mortgage being extinguished. 11. The learned Advocate for the plaintiff contended that the defendant having purchased the suit house subject to the suit mortgage, he cannot be allowed to plead against the validity of the mortgage and that the finding of the trial Court to the contrary is incorrect. Order 21, rule 62, Civil Procedure Code, is as follows: “Where the Court is satisfied that the property is subject to a mortgage or charge in favour of some person not in possession and thinks fit to continue the attachment, it may do so, subject to such mortgage or charge.” At page 1112 of Mulla’s Code of Civil Procedure, 13th Edition, Volume 2, the words ‘subject to a mortgage’ in the above rule have been commented in the following terms: “The Code clearly makes a distinction between the case in which property is expressly sold subject to a mortgage and the case in which notice of an alleged mortgage is given in the proclamation of sale. The former is provided for by the present rule, and the latter by rule 66 below. In the former case, the Court, after being satisfied of the existence of the mortgage sells only the judgment-debtor’s equity of redemption, that is to say, the purchaser buys the property subject to the mortgage. In the latter case, he buys the property with notice of the mortgage and subject to such risk as the notice might involve; the executing Court does not decide whether the mortgage subsists or not. Such being the case, if there is in reality a subsisting mortgage, then the purchaser has to redeem it. If, on the other hand, the mortgage specified in the proclamation of sale turns out invalid, the purchaser acquires the property free from liability for the mortgage. Such being the case, if there is in reality a subsisting mortgage, then the purchaser has to redeem it. If, on the other hand, the mortgage specified in the proclamation of sale turns out invalid, the purchaser acquires the property free from liability for the mortgage. The point to be noted is that mere notice of an alleged mortgage in the proclamation of sale does not preclude the purchaser from questioning the validity of the mortgage. But if the property is sold subject to a mortgage under this rule, the auction purchaser cannot challenge the validity and existence of the mortgage. Where the question is whether an order made on an application of the mortgage is one directing a sale of the property subject to the mortgage, or whether it is one merely notifying it, the answer to it must depend on whether there has been a judicial determination of the truth of the mortgage and of the amount payable thereon.” 12. In Daso Polai v. Narayana Patro 1 it has been held by a Bench of this Court that the Code of Civil Procedure makes a clear distinction between a case where property is sold subject to a mortgage as under Order 21, rule 62, Civil Procedure Code, and a case in which notice of an alleged mortgage is given in the proclamation of the sale as under Order 21, rule 66, that in the former case the Court is satisfied of the existence of the mortgage and sells only the judgment-debtor’s equity of redemption and the purchaser had to redeem the mortgage and that in the latter case, the purchaser buys the property with notice of the mortgage subject to such risks as the notice might involve, in other words, the executing Court does not decide whether the mortgage subsists or not and the purchaser is not precluded from questioning the validity of the mortgage. It appears from that case that by a note in the sale proclamation the decree-holder intended to give notice of the mortgage which he thought was prima facie valid. It was held that he was not precluded from questioning the validity of the mortgage. It appears from that case that by a note in the sale proclamation the decree-holder intended to give notice of the mortgage which he thought was prima facie valid. It was held that he was not precluded from questioning the validity of the mortgage. It is clear from page 200 of the decision that there was nothing on the record in that case to show that the executing Court decided whether the suit mortgage subsisted or not and ordered attachment and sale subject to the mortgage, as required under Order 21, rule 62, Civil Procedure Code. The appellant in that case filed a suit on a mortgage which he himself had pleaded in a prior proceedings as having merged and completely extinguished by a sale deed in his favour. It was held in the decision that the respondent-defendant who became the owner of the property as the decreeholder-auction-purchaser in a prior suit was not precluded by an admission the sale proclamation that the property had been sold subject to the mortgage on which the appellant filed the suit. 13. In Chekku v. Parvathi1, the above decision and other decisions have been referred to and it has been held that a purchaser of a property which is under mortgage is not precluded from impeaching the validity of the mortgage unless he has purchased the same subject to the mortgage or has undertaken to discharge it. It is clear from the decision that the mere mention in the sale certificate of the existence of the mortgage does not preclude the auction-purchaser from contending that the mortgage is not valid and binding as the executing Court does not decide whether the mortgage subsists or not. In Govinda Mohapatra v. Venkatakrishnayya2, it has been held that the question whether an order of the executing Court mentioning in the sale proclamation that the attached property was to be sold ‘subject to mortgage’ has the effect of so selling the property or has the effect of selling it with notice of the mortgage, depends upon the circumstances of the case and the construction of the order and that the question always depends upon whether the existence of the mortgage and the amount due under it have been judicially determined. 14. In this case, the sale certificate Exhibit B-1 in favour of the defendant shows that the sale is subject to the suit mortgage. 14. In this case, the sale certificate Exhibit B-1 in favour of the defendant shows that the sale is subject to the suit mortgage. In O.S.No. 13 of 1960 on the file of the District Munsif Court, Devakottai, the suit property was brought to sale by the plaintiff’s son-in-law as the assignee-decreeholder impleading the heirs of Kasi Chettiar, including the plaintiff, as defendants. It is true in the execution petition filed in the said suit, the plaintiff’s son-in-law has stated that the encumbrance on the suit property will be intimated later. The evidence of the plaintiff is that her son-in-law did not know of the mortgage in her name. Even assuming that the plaintiff’s son-in-law knew the suit mortgage, no adverse inference could be drawn from the mere fact that he promised to mention the encumbrances later. He produced the encumbrance certificate, which disclosed the suit mortagage. Exhibit A-14 shows that the learned District Munsif has passed the following order in E.P. No. 307 of 1961 in O.S.No. 13 of 1960, on the file of the District Munsif’s Court, Devakottai, “property has to be sold subject to encumbrance. Proclamation and sale on 8th January, 1962”. It is an undisputed fact that in the proclamation of sale, the suit property was brought to sale subject to the suit mortgage. Thus this is not a case where the suit mortgage was merely notified under Order 21, rule 66, Civil Procedure Code. But this is a case where the suit property has been ordered to be sold and actually sold subject to the suit mortgage. 15. It is clear from Mulla’s commentary on Order 21, rule 62, Civil Procedure Code, and the decisions referred to above that where the question is whether an order made on an application of the mortgage is one directing a sale of the property subject to the mortgage, or whether it is one merely notifying it, the answer to it must depend on whether there has been a judicial determination of the truth of the mortgage and of the amount payable thereon. Thus in spite of the fact that the suit property has been proclaimed to. Thus in spite of the fact that the suit property has been proclaimed to. be sold subject to a mortgage and that the sale certificate issued by the Court also evidence that fact, it will not attract the provisions of Order 21, rule 62, Civil Procedure Code, unless there is a judicial enquiry about the mortgage as Order 21, rule 62 requires that the Court must be satisfied that the property is subject to a mortgage. But this does not mean that there should be an elaborate enquiry or trial about it. In Daso Polai v. Narayana Patro1, there was only a note in the sale proclamation by the decree-holder that he intended to give notice of a mortgage which he thought was prima facie valid. We have already referred to the observation at page 200 of the decision that there is nothing on the record to show that the executing Court decided whether the suit mortgage subsisted or not and ordered attachment and sale subject to the mortgage as required under Order 21, rule 66, Civil Procedure Code. It is also pointed out in the decision that the decree-holder in that case gave also notice of other encumbrances which in his view were invalid and tnat he is therefore not precluded from questioning the validity of the suit mortgage in that case. In Chekku v. Parvathi2, it has been held that the mere mention in the sale certificate of the existence of the mortgage does not preclude the auction-purchaser from contending that the mortgage is not valid and binding as the executing Court does not decide whether the mortgage subsists or not. But in this, case, the plaintiff, Visalakshi Achi, the mortgagee, was the fifth defendant in that suit. The heirs of the mortgagor Kasi Chettiar were on record. The decree-holder in that suit, who will be interested in denying the mortgage in order to get the full decree amount due to him, has admitted the mortgage. It was under these circumstances the District Munsif Court, Devakottai, ordered that the property has to be sold subject to the encumbrance, namely, the suit mortgage. As there were no bidders, the upset price was reduced to Rs. 7,500, subject to the suit mortgage, and the defendant purchased the property for Rs. 12,300, subject to the suit mortgage. It was under these circumstances the District Munsif Court, Devakottai, ordered that the property has to be sold subject to the encumbrance, namely, the suit mortgage. As there were no bidders, the upset price was reduced to Rs. 7,500, subject to the suit mortgage, and the defendant purchased the property for Rs. 12,300, subject to the suit mortgage. The defendant went to the extent of pleading ignorance whether the sale in his favour was subject to the suit mortgage. He denied the suggestion that the suit property was worth Rs. 45,000. He went to the extent of stating that he purchased the suit property knowing that the suit mortgage was sham. He stated that the suit house was worth Rs. 15,000 and that he purchased it for Rs. 12,300. D.W.1 also stated that the suit house was not worth Rs. 40,000 or 50,000, that it was worth only Rs. 15,000 and that the defendant purchased it for Rs. 12,000 and odd. The amin’s valuation was Rs. 25,000. The upset price for the suit house was fixed at Rs. 15,000 and reduced to Rs. 7,500 only on account of the suit mortgage. As pointed in Govinda Moha-patra v. Venkatakrishnayya1, it is not necessary that the decision that the property should be sold subject to the mortgage should be passed on a claim by the mortgagee under Order 21, rule 58, Civil Procedure Code, as the mortgagee will have no cause of action for such a claim if the parties to the execution acknowledged and gave effect to the mortgagee’s rights. It has been rightly held in the) decision that the test is whether the matter has been judicially determined as between the parties then before the Court. It should be noted that it was decided in that case that properly construed the order of the District Judge, though passed on a petition purporting to be under Order 21, rule 66, and section 151, Civil Procedure Code, it was none the less an expression of judicial adjudication and that in the context of the circumstances it should be construed as one under Order 21, rule 62, Civil Procedure Code. It is clear from the several decisions referred to above that the order of the executing Court in this case is also a judicial order, that the sale shall be subject to the suit mortgage. It is clear from the several decisions referred to above that the order of the executing Court in this case is also a judicial order, that the sale shall be subject to the suit mortgage. Hence the defendant cannot be allowed to plead against the validity of the mortgage. 16. Sri R. Gopalaswamy Iyengar for the defendant urged that the burden of proof is really on the plaintiff to prove that the suit mortgage is supported by consideration. He referred to some decisions in support of his contention as to the burden of proof. In Bisheswer Dayal v. Harbans Sahay3, it has been held that if an action to enforce a mortgage security is contested by the mortgagor, the onus lies upon the mortgagor who admits execution of the mortgage, or against whom the execution of the mortgage has been proved, to prove that the recitals as to the payment of consideration for the deed are untrue. But it has been held in the decision that where the suit is contested by a stranger who denies that the bond was executed and also asserts that there was no consideration for the mortgage, the onus is upon the mortgagee to prove the same. It has been held in the decision that recitals in a deed that consideration has been paid is good evidence as against the maker and may be presumed to be true, till, at any rate, the maker, who has special means of knowledge, proves it to be mistaken or untrue, but that the position of the execution purchaser, who may be a representative in interests of the judgment-debtor for certain purposes, is obviously different as he knows nothing about the deed; he is not a party to it and he is entitled to call upon the plaintiff not only to prove the execution of the deed, but also to establish that there was consideration for it. This decision has been followed in Kumarappan Chettiar v. Narayanan Chettiar1, by a Bench of this Court. It has been held in this decision that when a suit upon a mortgage is contested by a stranger who denies that the bond was executed and also asserts that the mortgage was devoid of consideration, the onus is on the plaintiff to prove his case. It has been held in this decision that when a suit upon a mortgage is contested by a stranger who denies that the bond was executed and also asserts that the mortgage was devoid of consideration, the onus is on the plaintiff to prove his case. But this case is distinguishable as the sixth defendant was a purchaser in execution of a decree on a prior mortgage and he could not be bound by admissions made by the mortgagor in a subsequent mortgage. It is really unnecessary in this case to go into the question how far the defendant is a representative in interest of the mortgagor Kasi Chettiar and to what extent he will be bound by the admissions made by Kasi Chettiar as to the truth of the consideration of the suit mortgage at the time when he had proprietory interest over the suit property for the following reasons. Both parties have adduced evidence and the question of the burden of proof is no longer of any importance in deciding this case. In view of our finding that the defendant purchased the suit property subject to the suit mortgage and also that the suit mortgage is supported by consideration, it is really unnecessary to go into the question whether the burden of proof is on the plaintiff to prove consideration or for the defendant to prove want of consideration. 18. For the foregoing reasons, the decree and judgment in O.S.No. 43 of 1962, on the file of the Sub-Court, Devakottai, in favour of the plaintiff, are confirmed and Appeal No. 730 of 1963 is dismissed with costs. In view of our finding that the deposit letter Exhibit A-2 is fully supported by consideration, we set aside the decree and judgment in so far as they are against the plaintiff, with the result the suit is decreed as prayed for with costs. Appeal No. 755 of 1963 is allowed with costs. V.S. Appeal No. 730 dismissed; Appeal No. 756 allowed;---------Suit decreed as prayed for.