JUDGMENT : Issac, J. 1. This suit is an off-shoot of a protracted litigation. The plaintiff is the Central Banking Corporation of Travancore Ltd. (hereinafter referred to as the Bank). It had advanced money to one Banavanthar under a mortgage deed, Ext. P-1 dated 13th Mithunam 1102 M.E. Before that deed was executed, another creditor of the mortgagor instituted a suit against him as O.S. No. 140 of 1102, in the District Court of Alleppey on 4th Meenam 1102, attached before judgment one of the mortgaged properties, and obtained an ex parte decree on 10th Mithunam 1102. Ext. P-7 is a copy of that decree. When the attached property was proclaimed for sale in execution of the decree, Banavanthar sought to set aside the ex parte decree. The ex parte was set aside on 11th Kanni 1104; and the suit was contested by Banavanthar. But it was finally decreed as sued for on 14th Vrischikam 1105. The attached property was then proclaimed for sale; and the Bank, on coming to know about it, purchased the property in court auction on 14th Makaram 1106 and took delivery of the same through court. Ext. P-5, dated 14th Vrischikam 1109 is the sale certificate issued by the court and Exts. P-10, dated 6th Dhanu 1111 and P-11, dated 26th Dhanu 1111 are the delivery receipts. The Bank had been thereafter in possession and enjoyment of the said property. This property is the subject matter of the present suit; and it is hereinafter referred to as the suit property. 2. In the meanwhile, the Bank filed O.S. 135 of 1103 in the same District Court against Banavanthar and others for the money due under the mortgage deed, Ext. P-1. He also attached certain other properties of the mortgagor before judgment. That suit also was finally decreed in due course; and the rights thereunder were assigned by the Bank to one Vincent from whom the first defendant in the present action got it assigned. On the basis of the said assignment, the first defendant executed the decree, and brought to sale all the mortgaged properties, including the suit property. The first defendant purchased that property, and obtained delivery of the same through court on 25th March 1952. 3. On the basis of the said assignment, the first defendant executed the decree, and brought to sale all the mortgaged properties, including the suit property. The first defendant purchased that property, and obtained delivery of the same through court on 25th March 1952. 3. The suit property has an extent of 37 cents, and there is a storied building in it with three shop rooms on the ground floor and a hall on the first floor. Some time after the Bank took possession of the property, it leased out the land and the hall on the first floor of the building to the second defendant. The three shop rooms on the ground floor were leased out to other persons. Subsequently, the Bank and the second defendant entered into an agreement to sell the whole of the suit property to the second defendant for a sum of Rs. 18,000. The consideration was duly paid by the second defendant to the Bank; and the second defendant thereafter continued to occupy the suit property, except the three rooms on the ground floor on the terms and conditions of the agreement between them. This transaction is evidenced by Exts. P-46 (a), P-46 (b) and P-46 (c). It took place in 1946. However the sale deed for the property could not be executed by the Bank in favour of the second defendant, as the second defendant, who is a trade union was declared illegal by the Government. It was under the above circumstances that the first defendant took delivery of the property from the Bank pursuant to the sale certificate in O.S. No. 135 of 1103. Admittedly the first defendant got only a symbolic possession. The second defendant continued in possession of the suit property, except the shop rooms in the ground floor. These rooms were outstanding with tenants, who had attorned to the first defendant. Accordingly the first defendant has been collecting the rent of these rooms from 25th March 1952. 4. Admittedly the first defendant got only a symbolic possession. The second defendant continued in possession of the suit property, except the shop rooms in the ground floor. These rooms were outstanding with tenants, who had attorned to the first defendant. Accordingly the first defendant has been collecting the rent of these rooms from 25th March 1952. 4. On 29th March 1952 the Bank filed C.M.P. No. 1803 of 1952 in O.S. 135 of 1103 in the District Court, Alleppey under section 47, rule 100 of Order XXI of the Civil Procedure Code for a declaration that the sale of the suit property in O.S. 135 of 1103 and the execution proceedings relating thereto were invalid, and for re-delivery of the suit property with mesne profits, on the ground that the first defendant did not obtain any rights in respect of the said property, as it had been purchased by the Bank in the court sale in execution of the decree in O.S. 140 of 1102, pursuant to an attachment of the said property before the execution of the mortgage deed, Ext. P-1, on the basis of which the decree in O.S. 135 of 1103 was passed. The petition was allowed by that court. The first defendant filed A.S. No. 877 of 1966 in this court from the order in the above-said petition. The appellant contended, among other things, that the respondent's application was not maintainable either under section 47 or Order XXI, rule 100 of the C.P.C. A learned Single Judge of this Court upheld that contention and he disposed of the appeal with the direction that C.M.P. 1803 of 1952, which has been wrongly referred to in the judgment as E.A. 1803 of 1952, should be converted as a suit and tried and disposed of according to law. The case was remitted to the trial court, but it was subsequently found out that in view of the exclusive jurisdiction vested in this court by Banking Regulations Act, 1948 in respect of actions by and against banking companies under liquidation, the lower court had no jurisdiction to deal with the case. An application was, therefore, filed by the Bank to review the directions made by the learned Judge in A.S. No. 877 of 1960. An application was, therefore, filed by the Bank to review the directions made by the learned Judge in A.S. No. 877 of 1960. That application was allowed; and the learned Judge directed that the aforesaid C.M.P. 1803 of 1952 shall be transferred to this Court, and registered as a suit and disposed of subject to the same directions as had already been made by him. Accordingly C.M.P. No. 1803 of 1952 was transferred to this Court, and registered as a suit. The Bank has filed a plaint incorporating more or less the same averments and the same reliefs as were contained in the C.M.P. 5. The main contesting defendant is the first defendant. The second defendant is supporting the Bank. Most of the facts are not in controversy, and are also evidenced by court documents. The main contention of the first defendant is that there was no attachment subsisting on the suit property at the time of executing the mortgage deed Ext. P-1, and that, therefore, Ext. P-1 or the decree in O.S. 135 of 1103 obtained on its basis would not be affected either by the decree in O.S. 140 of 1102 or by the sale of the suit property in execution of that decree. He has also contended that the Bank is estopped from contending that the sale of the suit property in O.S. 135 of 1103 did not convey any right, title and interest in the said property, since it assigned the rights under the said decree without disclosing the fact that the suit property had been attached before judgment in O.S. 140 of 1102, and purchased by him in court sale in execution of that decree. There is also controversy regarding the mesne profits. The first defendant has further raised a plea of limitation. 6. In the light of the above contentions, I framed the following issues:- "(1) Were the suit properties subject to attachment before judgment in O.S. No. 140 of 1102 on the date of the hypothecation bond executed by the first defendant in the said case in favour of the plaintiff Bank? (2) Is the execution sale in O.S. 140 of 1102 vitiated by the pendency of O.S. No. 135 of 1103? (3) Had the plaintiff got possession of the suit properties in pursuance of the court delivery in O.S. 140 of 1102? (2) Is the execution sale in O.S. 140 of 1102 vitiated by the pendency of O.S. No. 135 of 1103? (3) Had the plaintiff got possession of the suit properties in pursuance of the court delivery in O.S. 140 of 1102? (4) Has the charge on the suit properties created by the hypothecation bond extinguished by the execution sale in O.S. 140 of 1102? Is the plaintiff estopped to raise such a contention? (5) Are the rights obtained by the plaintiff by the court sale in O.S. 140 of 1102 subject to the decree in O.S. 135 of 1103? (6) Is the court sale in O.S. No. 135 of 1103 on 7th Kumbham 1124 valid? Is it liable to be set aside for the reason stated in the plaint? (7) Is the first defendant liable for mesne profits? If so what is the rate? (8) Is the suit barred by limitation?" 7. The Bank has examined P.W. 1, one of its old kariasthas and marked documents Exts. P-1 to P-49. The first defendant has examined one person said to be his kariastha as D.W. 1, and also produced certified copies of the judgments in A.S. 877 of 1960 and the order in the review application filed in this appeal. These documents have been marked as Exts. D-1 and D-2. The first defendant has also produced two rent chits, pursuant to a direction given to D.W. 1 when he was examined. These rent chits have not been proved; and therefore they have not been marked in the case. 8. Issues 1, 2, 3, 5 and 4 except the last part thereof may be considered together, as they in substance raise the same question. The main point for consideration is whether the suit property was under attachment in O.S. 140 of 1102, when the mortgage deed Ext. P-1 Was executed in favour of the Bank by Banavanthar, the first defendant in O.S. 135 of 1103. Copy of the attachment order or of the attachment schedule has not been produced in this case. Apparently, they are not available. Therefore, there is no direct evidence as to whether the property was attached and if so when. P-1 Was executed in favour of the Bank by Banavanthar, the first defendant in O.S. 135 of 1103. Copy of the attachment order or of the attachment schedule has not been produced in this case. Apparently, they are not available. Therefore, there is no direct evidence as to whether the property was attached and if so when. But the Bank had alleged expressly in the affidavit attached to C.M.P. No. 1803 of 1952 that the suit property had been attached before judgment in O.S. 140 of 1102 in Meenam 1102 and the said suit had also been decreed before the execution of the mortgage deed, Ext. P-1. In his objection to the above petition, the first defendant stated that it was not right to say that there was attachment before judgment of the suit property in Meenam 1102 and that there was no such attachment. The Bank has also alleged in the plaint filed in this Court as follows:— "Since the plaintiff bank came to know that prior to the said date of the hypothecation bond the plaint schedule property was attached before judgment in Meenam 1102 in O.S. 140 of 1102 of the District Court, Alleppey, that the said suit itself was decreed prior to the said hypothecation bond and that the said Lonan Bonavantur executed the said hypothecation bond suppressing the above facts, the plaintiff bank placed an attachment before judgment in respect of certain items of immovable properties of the said debtor." The answer to the above averment is contained in paragraph 3 of the first defendant's written statement. It reads: "Paragraph 2 of the plaint is not correct and is therefore denied. There was no attachment subsisting on the property at the time of the hypothecation bond in favour of the plaintiff. It is not correct to say that the hypothecation was executed suppressing the fact of attachment. O.S. 140 of 1102 was first decreed on 10th Mithunam 1102 ex parte. The ex parte decree was subsequently set aside and the suit was again decreed on 14th Vrischikam 1105." The defendant has not, therefore, denied the attachment before judgment of the suit property or the fact that O.S. 140 of 1102 had been decreed, before Ext. P-1 was executed by Banavanthur. His only case is that the attachment was not subsisting when the mortgage was executed. P-1 was executed by Banavanthur. His only case is that the attachment was not subsisting when the mortgage was executed. If an attachment is made, it remains in force until it is raised, or it ceases to be in force for any other reason. It is, therefore, for the first defendant to establish that the attachment had ceased to be in force when the mortgage was executed. There is absolutely no material to show that Counsel for the first defendant however contended that the attachment had been denied by him in the objection filed to C.M.P. 1803 of 1952, and that the Bank has, therefore, to prove the factum of attachment. When the party has in his pleadings before this Court admitted the fact of attachment by his omission to deny the same, it is not open for his counsel to advance a contention contrary to the party's case. It is all the more so, when the party has given up such a case for obvious reasons, as I shall presently show. Ext. P-6 is a copy of the execution diary in O.S. 140 of 1102 in which there is an entry against the date 13th Mithunam 1103 to the effect that the property had been attached before judgment and the decree-holder had produced the draft proclamation praying that the property may be proclaimed for sale. Ext. P-3 is copy of an affidavit which the Bank filed in O.S. 135 of 1103 on 22nd Thulam 1104 in support of an application to attach certain properties of Banavanthur for the reasons stated therein. Paragraph 5 of that affidavit states that, though Banavanthur had executed a mortgage as security for the amounts due to the Bank, a suit had been filed as O.S. 140 of 1102 in the District Court, Alleppey and another suit had been filed as O.S. No. 1088 of 1102 in the Munsiff's Court, Alleppey, against Banavanthur for debts amounting to above Rs. 6,000, and that the most important item of property included in the said mortgage had been attached before judgment in O.S. 140 of 1102, and the suit had also been decreed before the said mortgage was executed. The affidavit further states that the said fact was fraudulently suppressed from the Bank, when the mortgage was executed. Ext. P-4 is the objection petition and the affidavit thereto filed by Banavanthur to Ext. P-3. The affidavit further states that the said fact was fraudulently suppressed from the Bank, when the mortgage was executed. Ext. P-4 is the objection petition and the affidavit thereto filed by Banavanthur to Ext. P-3. In paragraph 7 of the affidavit, he stated that he did not know about the filing of O.S. 140 of 1102 or about the attachment before judgment, when he executed the mortgage in favour of the Bank and that he had furnished an encumbrance certificate to the Bank when executing the mortgage. He also stated in the said paragraph that he did not owe any amount to the plaintiff in O.S. 140 of 1102, and all that had been attached before judgment in that suit was item No. 9 in O.S. 135 of 1103. Admittedly that is the suit property. Therefore, there is a very clear admission that the suit property had been under attachment before judgment in O.S. 140 of 1102, when the mortgage deed Ext. P-1 was executed. In fact, the suit itself had also been decreed before the execution of Ext. P-1. The denial of the above fact in the objection petition filed by the first defendant in answer to C.M.P. 1803 of 1952 was an utter falsehood. He became wiser in the light of the above documents; and that is the reason why he did not repeat that contention in the Written statement filed in this Court. I therefore unhesitatingly come to the conclusion that the suit property was under attachment before Ext. P-1 was executed in favour of the plaintiff-bank by the defendant in O.S. 140 of 1102. 9. The next question for consideration is, if the suit property was under attachment when Ext. P-1 was executed and it was sold in execution of the decree in the suit in which it was attached, whether the subsequent purchaser of the same property in execution of the decree obtained on the basis of the said mortgage would get right, title or interest in the said property by virtue of the sale in execution of the mortgage decree. In support of his contention that the latter sale would not convey any right, counsel for the plaintiff relied on section 64 of the C.P.C. It reads,— "64. In support of his contention that the latter sale would not convey any right, counsel for the plaintiff relied on section 64 of the C.P.C. It reads,— "64. Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor or any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment. Explanation.— For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets." It is obvious from the language of the section itself that the right, title and interest that the purchaser claims under the court sale in execution of the decree in which the property was attached is a claim enforceable under the attachment; and that being so, any private transfer of the said property shall be void as against that claim. In his commentaries under section 64 of the C.P.C. by Mulla on the Code of Civil Procedure, 13th edition at page 313, the learned author states as follows:— "In execution of a decree obtained by A against B, certain property belonging to B is attached. During the pendency of the attachment. B mortgages the property to C. The property is then sold in execution of the decree and purchased by D. Here the mortgage having been made contrary to the attachment is void as against A's claim, and D is entitled to take the property free from the mortgage created by B." The above statement is based on the decision of the Madras High Court in Srinivasa v. Vellayan, A.I.R. 1926 Mad. 966. The facts in that case are exactly on point; and the statement quoted above is fully supported by the decision; and in my view it states the correct legal position. It follows that the whole right, title and interest in the suit property passed to Bank by the court sale in O.S. 140 of 1102, and that, by virtue of the fact that the mortgage was subject to the attachment before judgment in O.S. 140 of 1102, the decree-holder or the auction purchaser in execution of the decree in O.S. 135 of 1103 did not get any right in respect of the said property. The first defendant has, therefore, not derived any manner of right in the suit property. The first defendant has, therefore, not derived any manner of right in the suit property. In the result I find the above issues in favour of the plaintiff and against the first defendant. 10. The next question for consideration is the one covered by the second part of issue No. 4, viz., the question of estoppel. Counsel for the plaintiff contended that the Bank did not disclose the existence of the attachment of the suit property or the purchase of the said property by the Bank in court sale in O.S. 140 of 1102 to Vincent the first defendant's predecessor, to whom the rights under the decree in O.S. 135 of 1103 were transferred, that, on the other hand the decree was transferred with the right to recover the decree debt from the mortgaged properties as well as from properties attached before judgment in the latter suit, that this amounted to a representation that the Bank had no right in the suit property, that the same would be available for being sold in execution of O.S. 135 of 1103, and the Bank will, therefore, be estopped from putting forward a contrary position. Admittedly there was no document for transfer of the decree. The rights under the decree were transferred by filing an execution petition jointly by the decree-holder and the transferee stating that the decree has been transferred and that execution may be allowed in favour of the transferee. This joint execution petition also has not been produced in the case. In the absence of clear evidence as to what the Bank represented to the transferee, it is not possible to say whether the said representation would furnish the ground for any estoppel. The plea of estoppel in this case is not based on express representation, but on the alleged silence on the part of the Bank. Silence may amount to representation, only when the person observing silence has an obligation to speak or disclose the facts, which are alleged not to have been disclosed. I do not think that transfer of a money decree involves a representation that all the properties charged under the decree are available for being proceeded with for the recovery of the decree debt, or the said properties are not subject to any defector want of title. I do not think that transfer of a money decree involves a representation that all the properties charged under the decree are available for being proceeded with for the recovery of the decree debt, or the said properties are not subject to any defector want of title. An assignee decree-holder takes the decree with all the risks, in the absence of any provision to the contrary in the contract of assignment. On the facts of the instant case, none of the above considerations arises. It is alleged in paragraph 5 of the plaint that the decree in O.S. 135 of 1103 was assigned to the aforesaid Vincent on 23rd Meenam 1123 M.E. at the request of Banavanthur, the defendant in that suit. In other words, Vincent was a nominee of Banavanthur; and if so, he knew about the attachment before judgment of the suit property, and its sale in execution of the decree in O.S. 140 of 1102, and the purchase by the Bank, who was admittedly in possession of the property from 1111. The allegation that Vincent was a nominee of Banavanthur is not denied in the written statement of the first defendant; nor has he got a case that the assignee was not aware of the above facts, when he got the decree assigned. There is, therefore, no factual basis for the plea of estoppel. 11. The next issue for consideration is issue No. 7, which relates to mesne profits. Admittedly the second defendant has been in possession of the first floor of the building and all the lands attached thereto. The first defendant has not obtained possession of that part of the property, nor has he collected any rent in respect of that. The first defendant is not, therefore, liable for mesne profits in respect of that part of the property. The plaintiff has no claim for mesne profits against the second defendant. Therefore the claim for mesne profits can arise only in respect of the three rooms on the ground floor of the building. The plaintiff has not adduced any evidence with regard to that matter. There is the evidence of D.W. 1 that two of the rooms have been leased out from time to time on a monthly rent of Rs. 4 each. He also stated that the third room is lying vacant; but there is no evidence for what period it has been vacant. There is the evidence of D.W. 1 that two of the rooms have been leased out from time to time on a monthly rent of Rs. 4 each. He also stated that the third room is lying vacant; but there is no evidence for what period it has been vacant. The first defendant, having taken symbolical delivery of three rooms, he is bound to account for its mesne profits. He has not rendered any accounts regarding the actual income received by him. In this state of evidence, I would fix the gross income from the said three rooms at Rs. 144 per year, calculating a rent of Rs. 4 per month for each room. The first defendant states that he has been paying the municipal and other taxes in respect of the whole property. Neither the second defendant nor the plaintiff has got the case that either of them has paid any tax for the property, or met the expenses for maintenance of the building. At the same time, the first defendant has not given any data as regards the amounts spent by him per year on this account. In these circumstances I can only make a rough estimate; and accordingly, I fix the mesne profits of the three rooms on the ground floor of the building at Rs. 100 per year. 12. The last issue for consideration is the one relating to limitation. The application for re-delivery of the property, which is based on Bank's title thereto, was filed within four days from the date of dispossession; and that application has been converted as a suit as directed by this Court by the judgment in A.S. No. 877 of 1960. If the application is not maintainable under rule 100 of Order XXI C.P.C., as was held by that judgment, the suit is plainly one based on the Bank's title, and no question of setting aside the sale in O.S. 135 of 1103 arises, though the Bank has prayed for such a relief also. In any view of the matter, there is no question of limitation. This issue is found against the first defendant. 13. In the result I pass a decree in favour of the plaintiff for recovery of the possession of the suit property from the first defendant. In any view of the matter, there is no question of limitation. This issue is found against the first defendant. 13. In the result I pass a decree in favour of the plaintiff for recovery of the possession of the suit property from the first defendant. The plaintiff has not sought recovery of that part of the property which is in the possession of the second defendant from the said defendant. It is a matter to be settled between the plaintiff and the second defendant and that question does not arise in this action. The first defendant will also pay mesne profits to the plaintiff at the rate of Rs. 100 per year from 25th March 1962 (being the date on which he took possession of the property from the plaintiff), till the plaintiff is put in(possession of the said property or the expiry of three years from this date whichever is earlier. The plaintiff will get interest at the rate of 6 per cent on the arrears of mesne profits from this date. The plaintiff will also be entitled to its costs from the first defendant. The suit is decreed in the manner stated above.