JUDGMENT Murlidhar, J. - This is a second appeal by the plaintiff Union of India and arises out of a suit for a declaration that the mortgage deed dated 20-10-1950 executed by defendant No. 2 Ram Nath in favour of defendant No. 3 Himachal Co-operative Bank Ltd., and the decree in suit No. 49 of 1954 brought by defendant No. 1 against the mortgagor Ram Nath and his brother Bundi Lal be declared null and void and be set aside and that the sale in execution of this decree wherein the property was purchased by the Bank decree-holder itself be also quashed. 2. The brief relevant facts are that certain income-tax demands were pending against Chaudhry Bundi Lal and a recovery certificate was issued to the Collector for recovery of the amount under Section 46 of the Income Tax Act against him. The disputed house belonged to Bundi Lal. He apparently with a view to avoid the property being seized in the recovery proceedings executed a sale deed of the property on 4-6-1949 for Rs. 8000/- in favour of his own brother Ram Nath. In this sale deed Rs. 5000/- was shown paid cash at registration while the remainder was alleged to have been received before registration. On 28-10-1950 Ram Nath mortgaged this property in favour of the Bank of Sirmur for a sum of Rs. 5000/- with interest at 8% per annum. This Bank later on came to be represented by the Himachal Co-operative Bank Ltd., defendant No. 1. Meanwhile the proceedings for recovery got underway before the Collector and on 30-11-1953 he attached the disputed property as the property of Bundi Lal for recovery of the amount due to the Income Tax Department from Bundi Lal following this attachment two suits were filed. Suit No. 49 of 1954 was filed by the mortgagee against both Ram Nath and Bundi Lal. In this suit a compromise was arrived at between the parties on 12-7-1956 and the suit was decreed for Rs. 5,263/.- in terms of the compromise. Another suit No. 145 of 1954 was filed by Ram Nath against the Union of India, the Collector and Bundi Lal wherein he claimed a declaration of his own title to the property in suit. 5,263/.- in terms of the compromise. Another suit No. 145 of 1954 was filed by Ram Nath against the Union of India, the Collector and Bundi Lal wherein he claimed a declaration of his own title to the property in suit. This suit came to be dismissed with costs on 13-11-1957, the finding being that the sale in favour of Ram Nath was fictitious, collusive, fraudulent and without consideration and executed with a view to defraud the Department, the Collector apparently proceeded to sell the property on 2-6-1962 and it was purchased by one Dr. U.C. Chandna. On the other hand the civil court to effect its own sale in execution of the compromise decree, in suit No. 49 of 1954 sold the property and it was purchased by the Bank decree-holder itself. The objections of Dr. U.C. Chandna to the civil court sale were rejected. In this appeal the Union of India has attacked the mortgage in favour of the Bank, the decree, and the sale in execution of that decree as collusive and fraudulent. The Bank on the other hand pleaded bona fides in all its dealings. The trial court took the view that the plaintiff failed to prove that the sale deed dated 4-6-1949 in favour of Ram Nath was collusive and that even if the sale deed were treated to be collusive and illegal the Bank was a bona fide mortgagee for consideration and as such protected under Section 41 of the Transfer of Property Act. It observed that the Bank made all possible enquiries about the title of Ram Nath to the property in dispute through K. P. Agarwal, D.W. 1, its Manager. The suit was accordingly dismissed. In an appeal by the Union of India the lower appellate court held that the decision about the collusive and void character of the sale in favour of Ram Nath in suit No. 49 of 1954 could not bind the Bank as the Bank, though a prior mortgagee, was not a party to that suit. The lower appellate court, however, confirmed the finding of the trial court on both the counts and dismissed the appeal. 3. The lower appellate court, however, confirmed the finding of the trial court on both the counts and dismissed the appeal. 3. In this second appeal the learned counsel for the appellant has urged that the sale deed in favour of Ram Nath was fictitious as already held in suit No. 145 of 1954 and that even though the decision in that suit may not be res judicata against the Bank it has great evidentiary value under Section 43 of the Evidence Act and if this were given due weight the lower courts would not have found that the sale deed was not fictitious, collusive, fraudulent and void. To my mind it is not necessary to go into the question whether the sale deed had this character as between the two brothers and vis-a-vis the defrauded creditors amongst whom is the appellant. Assuming that this was so tie question for consideration is whether the mortgage in favour of the Bank was a good mortgage. Even though Ram Nath may not have a good title there may be little doubt that he had an ostensible title and, therefore, the question turns upon whether the Batik was a bona fide transferee for value. Oil this point the Bank has examined its Manager K. P. Agarwal, D.W. 1, and the trial court has considered the evidence. The nature of the institution also makes it likely that normal precautions would be observed before granting the loan. At any rate both the courts below have found that the mortgage in favour of the Bank by Ram Nath was protected under Section 41 of the Transfer of Property Act inasmuch as the Bank was a bona fide transferee. This I take to be finding of fact binding in second appeal. At any rate no infirmity has been pointed out in the finding of the courts below which could be taken note of in second appeal. If this finding is taken to be correct, as it must be, the question of real title of Ram Nath becomes immaterial. 4. If the mortgage in favour of the Bank is upheld the compromise decree and the auction sale would all have to be upheld because there is no question that a secured creditor gets preference over unsecured creditors including Government dues. The income-tax dues have priority over all other unsecured creditors but not over secured ones. 4. If the mortgage in favour of the Bank is upheld the compromise decree and the auction sale would all have to be upheld because there is no question that a secured creditor gets preference over unsecured creditors including Government dues. The income-tax dues have priority over all other unsecured creditors but not over secured ones. Therefore, the Bank was entitled to get its amount due under the mortgage from the property before any other creditor's claim can be considered. In this view of the matter the auction in execution to satisfy the mortgage can also not be questioned on the ground of fraud. 5. Learned counsel for the appellant tried to urge that Section 53, Transfer of Property Act, does not contemplate a mortgage but only an out and out transfer. The proposition does not appeal to me and in any case this will be of no avail to the appellant because then the sole plank of attack would be that Ram Nath's mortgage created no right in the mortgagee and the other ground of attack that it was a fraudulent transfer to avoid paying Government dues would disappear. 6. Lastly it was urged that in any case the property is worth much more about Rs. 70,000/- than the mortgage money due to the Bank and the remainder should have been made available for the purpose of income-tax dues as the appellant's dues hive priority over all other creditors. I am afraid this matter cannot be taken note of in these proceedings. If there is any remainder the appellant should file a proper claim in a proper court for that amount. On the other hand if the grievance is that the property was sold for an inadequate amount thereby affecting the appellant's claim, the matter should have been agitated before the court affecting the sale. 7. Learned counsel for the appellant further urged that even if the mortgage be held to be valid the Collector had the right to attach the property though this attachment may be subject to the rights of the mortgagee. According to him the Collectors sale in favour of Dr. U.C. Chandna would at least confer a good title only subject to the Bank's rights and now that sale has been undone on account of the civil court decision the Collector's attachment and right to proceed with the sale of the property revives. According to him the Collectors sale in favour of Dr. U.C. Chandna would at least confer a good title only subject to the Bank's rights and now that sale has been undone on account of the civil court decision the Collector's attachment and right to proceed with the sale of the property revives. This argument omits to consider the fact that the Collector's attachment does not in any way affect the mortgagee's right to sell the property in execution of the mortgage decree because attachment does not create any interest in the property. On this position whatever rights the appellant could have by attachment or by sale in pursuance of that attachment should have been agitated before the Court that sold the property in execution of the mortgage decree. That sale being valid in preference to the attachment by the Collector, the present suit for setting aside that sale has to fail. 8. In the result the appeal fails and is hereby dismissed. No order as to costs.