S.R. Subramania Aiyar vs L.A. Krishna Iyer

Charles Gordon Spencer, J.—The respondent having attached the appellant''s Immovable properties before judgment, obtained a decree

for Rs. 2,224-12-0 against him and his mother on 28th January 1919. Afterwards he applied through E.P. No. 35 of 1924 for sale of the

properties which were attached before judgment. In the interval two petitions for executing the same decree had been rejected owing to the

execution petitioner''s fault. The appellant filed C.M.P. No. 722 of 1924 on November 18th 1924, asking (1) that the auction-sale fixed for

November 24th, 1924, should be stopped, (2) that the whole proceedings in the pending E.P. R. No. 35 should be vacated, and (3) that E.P.R.

No. 35 should be dismissed. The Subordinate Judge of Coimbatore refused these reliefs and dismissed the C.M.P. From that order the appellant

has filed an appeal and a revision petition to the High Court on March 2nd, 1925. The sale took place on February 9th, 1925, and awaits the

lower Court''s order of confirmation under Order XXI, Rule 92, C.P.C. The appellant''s Vakil contends that the attachment of the property ceased

by virtue of Order XXI, Rule 57, upon the dismissal for default of the prior execution petitions, the attachment before judgment being good only

until the first execution petition after the passing of the decree was dismissed Vide Meyappa Chettiar v. Chidambaram Chettiar (1924) M.W.N.

392 and that the sale of the property without a previous subsisting attachment was illegal.

In my opinion there is a short answer to this appeal and the accompanying revision petition. The sale having already taken place the judgment-

debtor''s remedy lies in applying under Rule 90, of Order XXI to have it set aside, and from the order to be passed by the Executing Court he will

have a right of appeal to this Court under Order XLIII, Rule 1(j), C.P.C.

It is too late to stop the sale after it has taken place and at the same time it would be premature on the part of this Court to set aside the sale, the

power to do so being vested in the first instance in the Executing Court. The appellant did not obtain an order from the High Court to stay the sale

before it was concluded. We should not make a declaration or pronouncement of opinion as to the validity of a sale while proceedings for

confirming or setting it aside are pending in the Court; below, and there is no room for our interfering otherwise with the course of the execution

petition which will be finally disposed of only when final orders are passed under Rule 92 and when it is known to what extent the decree has been

satisfied. The fact that there is no right of appeal provided in the C.P.C. against orders under Order XXI, Rules 64 and 66 for sale of property

indicates that such orders are of an interlocutory nature. The appealability of an order for sale was raised in Namuna Bibi v. Roshun Meah 9 Ind.

Cas. 558 but not argued with assurance vide page 486*. The learned Judges considered that an appeal lay u/s 47, C.P.C., as it was a question

between the sale had been held, it does not appear that he made an attempt to have the sale set aside by the Sub-Judge u/s 47 as illegal for want

of a fresh attachment upon this ground, which has not been considered in the Judge''s order of November 29th 1924, and the present appeal

cannot be treated as an appeal against an order which the Sub Judge might have made, if such a contention had been put forward at the proper

time. For these reasons, I consider that the only order we can make is to dismiss the appeal with costs. The revision petition being only an

alternative remedy to the appeal is dismissed without costs.

Madhavan Nair, J.

This appeal arises from an application made by the appellant-judgment-debtor objecting to the sale of certain properties in execution of the

decree in C.S. No. 117 of 1918, Sub-Court, Coimbatore, on the ground that the properties in question had not been attached prior to the order

for sale. The decree-holder, the respondent before us, had obtained a decree for money against the appellant and had attached the said properties

before judgment. After the decree he filed two successive applications for execution which were returned by the Court for making some

corrections and for the production of some paper? As the directions of the Court were not complied with these petitions were eventually

dismissed. The decree-holder afterwards filed E.P. No. 35 of 1922 for the execution of his decree by sale of the properties and the sale was fixed

for the 24th November 1924. When the appellant became aware of the said execution petition he applied to the Sub-Court in E.A. No. 722 of

1924 praying ""to stop the sale fixed for 24th November 1924 and to vacate the whole proceedings in E.P.R. No. 35 of 1924 and to dismiss the

petition and to pass such other and further orders as may be just and necessary."" The Subordinate Judge held that since the two petitions which

were dismissed for noncompliance with the Court''s order could net be considered as execution petitions in accordance with law, their rejection

could not operate to vacate the existing attachment under Order XXI, Rule 57, C.P.C., and that, therefore, no re-attachment was necessary to

bring the properties to sale. In this view he held that there was no need to stop the sale or to dismiss the execution petition (E.P.R. No. 35 of

1924) and that the respondent has rightly brought the attached properties to sale. The properties have since been sold and purchased by the

decree-holder.

It is urged by the appellant that the petitions which were dismissed were execution petitions in accordance with law, that since they were

dismissed for the default of the decree-holder, the attachment of, the properties had ceased under Order XXI, Rule 57, C.P.C., and that as no

further attachment was made, the order of the Subordinate Judge to proceed with the sale of the properties should be set aside. Besides

supporting the order of the learned Judge on the reasons contained in it, the respondent in this Court has put forward an additional ground in

further support of the order, namely, that even if the attachment has ceased under Order XXI, Rule 57, C.P.C., the failure to reattach the

properties prior to the sale is only an irregularity and not an illegality vitiating the sale, and that unless the Court is satisfied that the petitioner

sustained substantial injury by reason of such irregularity the Court should not set aside the order. He has also argued that no appeal lies against the

order passed by the Subordinate Judge u/s 47 of the C.P.C.

The questions for our consideration arising upon the above contentions of the respective parties are: (1) Are the petitions dismissed for default

by the Subordinate Judge for non-compliance with his directions execution petitions in accordance with law? (2) Does Order XXI, Rule 57,

C.P.C., apply to the facts of this case? (3) If questions Nos. 1 and 2 are decided in favour of the appellant is the sale of properties without an

attachment void ab initio or is absence of attachment prior to sale only an irregularity? (4) Does an appeal lie against the order?

As regards question, No. 1, I have no doubt the opinion of the Subordinate Judge is clearly wrong. The respondent''s learned Vakil himself has

only very faintly attempted to support it. I have carefully examined the second petition dismissed for default by the Subordinate Judge. I am

satisfied that it has complied with all the requirements demanded by the Code and that it is an application in accordance with law under Order

XXI, Rule 17, C.P.C. The paper that was called for but hot produced for want of time, viz., the copy of the attachment list prepared by the amin,

was hot, as was, seen subsequently absolutely necessary for proceeding with the execution of the decree in this case and it was found, when

requisition for the same paper was made in E.P. No. 35 of 1924 also, and on which sale of the properties was afterwards ordered that the

document called for had been destroyed. In fact, the order for sale of the properties now objected to was passed in E.P. No. 35 in the absence of

this document. In these circumstances lam satisfied that the applications for execution were really in accordance with law and the Court could have

passed orders on them to effectively carry out execution.

In the view that the applications dismissed for default are applications in accordance with law, the next question for us to consider is whether

Order XXL, Rule 57, C.P.C., applies to the facts of this case. According to that rule, when any property has been attached in execution of a

decree and the application filed for execution has been dismissed by reason of the decree holder''s default, such, dismissal will have the effect of

vacating the attachment. In this case, as already mentioned, the properties had been attached before judgment. Order XXXVIII, Rule 11, C.P.C.,

states that when a decree is subsequently passed it shall not be necessary upon an application for execution of such decree to apply for re-

attachment of property. It has been held in Meyyappa Chettiar v. Chidambaram Chettiar 79 Ind. Cas. 144 : 46 M.L.J. 415., applies to cases

wheie property had been attached before judgment and that if ''an execution application filed after the passing of the decree has been dismissed on

account of the decree-holder''s default, then the attachment ceases. Applications for executions in this case having been dismissed by reason of the

decree-holder''s default, it follows from the authority of this ruling that the attachment existing on the properties ceased and these, when ordered to

be sold, were not under attachment. This conclusion renders it necessary to decide the third question raised by the parties, namely, whether the

sale of properties in execution without an attachment is void ab initio.

In Sharodu Moyee Burmonee v. Woorna Moyee Burmonee 8 W.R. 9 it was held by Jackson, J., that an attachment was not an essential

preliminary in an execution tale. The reason for this view is thus stated by the Earned Judge. ""Attachment is a measure resorted to by the decree-

holder for his own protection and the protection of purchasers of the property to be, sold,, and it consists in the ease of Immovable property

merely in a prohibition by the Court by which the judgment-debtor is restrained from alienating the property previous to the sale. This, therefore,

being merely a measure for the protection of the decree-holder and the purchasers of the property, the absence of it is not, it appears"" tome, an

objection which the judgment-debtor is competent to raise."" In Baboo Luchmeeput v. Baboo Lekraj Roy 8 W.R. 415 the same Court held that a

sale without attachment was irregular; but, as pointed out in Kishory Mohun Roy v. Mahomed Mujaffar Hussain 9 Ind. Dec.. 126 ""as that was a

case of sale of moveable property, and the suit was one for damages, the Court was not called upon to decide whether the sale should be

regarded as a nullity."" Though the decision in Sharoda Moyee Burmonee v. Woorna Moyee Burmonee 8 W.R. 9 was under the C.P.C. of 1859

which did not contain a provision corresponding to Order XXI, Rule 64, of the present C.P.C., jet the reasoning of the learned Judge has been

accepted and applied in deciding cases both under the Act of 188& and under the present Code by our High Court. In Muniappa Naik v.

Subramania Ayyan 6 Ind. Dec. 654 on the ground that ""the object of attachment is to take the property out of the disposition of the judgment-

debtor the learned Judges, Muthusami Iyer and Best, JJ., held that the omission to attach u/s 274 of Act XIV of 1882 was only an irregularity.. In

Ramasami Naik v. Ramaswamy Chetti 30 M. 255 it was held for the same reason that the sale in execution of a decree is not invalid although there

has been no attachment before sale as required by the Code. These decisions and the decisions in Kishory Mohun Roy v. Mahomed Mujaffar

Hussain 9 Ind. Dec. 126 and Sheodhyan v. Bholanath 9 Ind. Dec. 907 were followed by Sankaran Nair and Badasiva Iyer, JJ. in Velayutha

Muppan v. Subramanian Chetti 18 Ind. Cas. 498 : 24 M.L.J. 70 (1913) M.W.N. 136 where they held that a sale of Immovable property in

execution of a decree without the preliminary attachment is not null and void. This was a decision under this new Code. The latest reported

decision of this Court is to be found in Sivakolundu Pillai v. Ganapathy Iyer (1917) M.W.N. 89 where the learned Judges held that ""attachment is

only a step to be taken by the Executing Court in bringing to sale che properties of a judgment-debtor. If such a step is omitted the sale can be set

aside only if it has resulted in substantial loss"" and the absence of attachment does not affect the jurisdiction of the Executing Court to sell the

Immovable property. Our High Court has thus held in a series of decisions both under the old Code and the present one that the absence of

attachment does not affect the jurisdiction of the Executing Court to sell the property and that the sale on that account is not null and void. In

Sheodhyan v. Bholanath A.W.N. (1899) 84 the learned Judges of the Allahabad High Court after an elaborate consideration of the object of

attachment have also arrived at the same conclusion.

As against these decisions which, if accepted, would entail the dismissal of his appeal the learned Advocate-General relies upon a recent

decision of the Calcutta High Court in Panchanan Das v. Kunja Behari 42 Ind. Cas. 259 to the effect that a Court has no jurisdiction to sell a

property in execution which had not been duly attached. The learned Judges base their conclusion Upon a decision in Sorabji Coovarji v. Kala

Raghunath 12 Ind. Cas. 911 some observations of the Privy Council in Raja Thakur Barmha v. Jiban Ram Marwari 19 C.L.J. 161 : 26 M.L.J. 89

: 41 I.A. 38 (P.C.) and upon the terms of Order XXI, Rule 61, C.P.C. it is to be noticed that the learned Judges do not in their judgment refer to

the earlier decisions of their Court in Kishory Mohun Roy v. Mahamed Mujjafar Hussain 9 Ind. Dec. . 126 and Hari Charan Singh v. Chandra

Kunwar Dey 11 C.W.N. 745 which held that a sale is not to be considered as a nullity merely by reason of the absence of any attachment.

The observations of Scott, C.J. in Sorabji Coovarji v. Kala Raghunath 12 Ind. Cas. 911 that ""property can only be brought to sale after it has

been duly attached and if the. attachment came to an end upon the payment into Court on the 22nd of September 1909 the property was not duly

attached at the time of the sale in January 1910"" no doubt support the contentions of the appellant. We do not find in the course of the judgment

any discussion of the case-law bearing on the question, nor an answer to the reasoning on which the view of the Madras and the Allahabad High

Courts is based, namely, that an attachment is a measure resorted to for the protection of the decree-holder and the purchaser against intermediate

alienation, and is only a step to be taken by the Executing Court in bringing to sale the properties of a judgment-debtor. It is conceded in the

judgment that the decision of the Privy Council is not exactly in point, but the following remarks of Lord Moulton are referred to as indicating the

view of their Lordships that the property can only be sold when it has been duly attached. ""Their Lordships are of opinion that this is a very plain

case. That which is sold in a judicial sale of this kind can be nothing but the property attached, and that property is conclusively described in and

by the schedule to which the attachment refers."" The facts of the case and their Lordship''s decision will clearly show that these observations only

mean that a certificate of sale cannot be granted in which the property described is different from the property attached and specified in the

proclamation of sale. In that lease the judgment debtor owned 16 annas share of a mahal of which 10 annas share was mortgaged while the

remaining 6 annas were free from any mortgage. The proclamation of sale described the property to be sold as 6 annas share included in the

mortgage. This was the property that was attached and sold in auction. An application was made on behalf of the auction-purchasers to obtain a

sale certificate for the 6-annas share purchased by them at the auction. In making the application they alleged that a mistake had been made in the

schedule of the property to be sold in that the word ""not"" had been omitted from the description of the 6 annas in question and that the property

should have been described as being 6 annas not mortgaged They claimed that their certificate should be made out as being a certificate of the

purchase by them of the 6 unencumbered annas instead of, as described in the schedule, ""6 annas subject to the existing mortgage."" The

Subordinate Judge granted them a certificate in the form in. which they desired. Tins order upheld by the High Court was set aside by the Privy

Council. After the extract from the judgment already referred to, their Lordships state."" In the present case the property was 6 annas subject to an

existing mortgage. The effect of the certificate of sale granted by the order of the Subordinate Judge is to make the sale that of a property not

attached, namely, the 6 unencumbered annas, a property which could not be sold in such proceedings inasmuch as it was not the property

attached."" Later on their Lordships say ""in this case we have to deal with identity and not description."" Their Lordships conclude thus:-- ""It was

beyond the powers of the Court to make such an order inasmuch as there was no power to sell in these judicial proceedings the property thus

certified to have been purchased."" It will thus appear that the extract quoted from their Lordships'' judgment in Panchonan Das v. Kunja Behari 42

Ind. Cas. 259 was only meant to indicate that the Court has no power to include in the sale certificate properties not attached and sold. Their

Lordships were not called upon to consider directly the question whether the absence of prior attachment will deprive a Court of its jurisdiction to

sell the properties in execution of a decree. Thus understood, it appears to me that the dictum of the Privy Council cannot be relied upon in

Support of the appellant''s arguments.

The terms of Order XXI, Rule 64, C.P.C., no doubt show that the attachment would ordinarily precede a sale of the properties in execution.

But, for the reasons mentioned, the decisions above referred to have held that the absence of such attachment would not vitiate a sale.

In Macnaghten v. Mahabir Pershad Singh 13 Bom. L.R. 1193 the question whether the notice of attachment not having been properly

published would affect the sale or bean irregularity in conducting the sale, was raised before the Privy Council but was not gone into, inasmuch as

that point was given up by the applicant at the trial before the Judge. In the absence of a definite pronouncement by their Lordships of the Privy

Council I am not inclined to follow the'' decisions in Panchanan Das v. Kunja Behari 42 Ind. Cas. 259 and Sorabji Coovarji v. Kala Raghunath 13

Bom. L.R. 1193 in preference to the long course of decisions of this Court. Following these decisions the sale in this case can be set aside only if

the Court is satisfied that the appellant1 has sustained substantial injury by reason of the irregularity complained of, namely, the absence of

attachment. It has not been, argued before us that he has sustained any such substantial injury and he has also not asked us to adjourn the hearing

of this case till the disposal of the application filed by him in the lower Court. It, therefore, follows that this appeal will have to be dismissed.

As I have decided to dismiss the appeal on the merits, I do not express any opinion as regards the ""appealability"" of'' the order passed by the

Subordinate Judge.

In the result, the miscellaneous appeal is dismissed with costs. The connected civil revision petition is also dismissed but without costs. No

orders are necessary on the stay petition.