Kulwant Sahay, J.The plaintiffs-respondents instituted a suit to enforce a mortgage, dated 19th October 1914. The mortgage was of twelve properties; but it appears that four of the properties have passed out of the possession of the mortgagors as a result of certain decisions of the Privy Council.

2. The plaintiffs instituted a suit on the ground that the remaining properties were not sufficient security for the mortgage. They filed an application on 24th November 1926, praying for an attachment before judgment on the allegation that the defendants were trying to execute certain transfers of the properties in order to avoid payment and to delay and defraud the plaintiffs. Their case was that the amount due under the mortgage would not be realized by sale of the mortgaged properties and that the other properties of the mortgagors would have to be proceeded against in order to realize the decree. The defendants appeared and filed a petition of objection to the attachment before judgment on 10th January 1927. In their petition of objection they stated that they had no desire to transfer any property in favour of friends, relatives or strangers and the stamp paper, which the plaintiffs alleged that the defendants had purchased in order to sell the property, was purchased long before the institution of the suit and the transaction for which it was purchased having fallen through the stamp paper was returned to the Collector.

3. The learned Subordinate Judge fixed 15th January 1927, for hearing the matter as regards the issue of injunction. The order-sheet of 15th January runs thus: "Petition not filed. Put up on 17th January 1927, for orders." It is explained that the petition referred to in the order of 15th January was a petition which the defendants vakil undertook to file giving an undertaking not to transfer the property before the disposal of the suit. On 17th January the defendants did not file the petition giving the undertaking and the result was that the learned Subordinate Judge at once made an order of attachment before judgment.

4. The only ground for making the order, as it appears from the order-sheet, is the failure of the defendants to give an undertaking not to transfer the property before decision of the suit. This, in my opinion, is not sufficient. The learned Subordinate Judge has to consider whether the plaintiffs have made out a sufficient case according to law in order to enable them to make an order for attachment of the other properties of the judgment-debtors before judgment. It is stated on behalf of the defendants that a claim for money-decree would be barred inasmuch as the suit was brought more than six years after the due date. The plaintiffs rely on certain payments which they allege save a personal claim for money against the defendants from limitation.

5. These are matters which the Subordinate Judge has to take into consideration before making an order for attachment. Under Order 38, Rule 5, Civil P.C., he has to be satisfied that the defendants are about to dispose of the whole or any part of their property or about to remove the whole or any part of their property from the local limits of the jurisdiction of the Court. There has not been a proper consideration of the case by the learned Subordinate Judge and his order of 17th January 1927, must be set aside and the case remanded to him for re-consideration as to whether a sufficient case has been made out for attachment before judgment.

6. The ad interim attachment ordered on 24th November 1926, will stand. We make no order as to costs.

Macpherson, J.

7. I agree.