1. This appeal raises a somewhat novel point with regard to the right of a decree-holder to attach the judgment-debtor's property before the decree becomes executable.
2. The facts are shortly these:--On July 11, 1932, the present appellant, who was the defendant in the suit, obtained, a money decree against one Basangowda for Rs. 370. Under the decree the amount was payable within six months. It is common ground between the parties that by virtue of that direction the decree-holder was not entitled to file an application for execution before the termination of that period. On August 9, 1932, before the period of six months expired, the present defendant filed a darkhast against his judgment-debtor in which he only asked for the relief of attachment of the judgment-debtor's immoveable property. That prayer seems to have been made on the ground that the judgment-debtor was going to alienate his property to defeat the decree-holder's claim. On August 31 the Court passed an order attaching the judgment-debtor's immoveable property. Thereafter, on September 27 the Court passed a further order directing the attached property to be sold and issuing notice under Order XXI, Rule 66, of the Civil Procedure Code. It is not explained under what circumstances that order came to be passed when there was no prayer for sale in the darkhast itself. However, the order for sale was passed, and there is an endorsement on the darkhast on October 11, 1932, that process fees for the notice were not paid. Thereupon on November 8 the Court passed an order' Not prosecuted. Dismissed. Attachment to continue'. Several months after that order, i.e. on July 10, 1933, the present plaintiff purchased some of the immoveable property, which was attached by the Court, from the heirs of Basangowda, the judgment-debtor for Rs. 3,000. Thereafter, another darkhast No. 458 of 1933 was filed by the present defendant for the attachment and sale of the judgment-debtor's immoveable property including the property sold to the present plaintiff. The plaintiff intervened and objected to the attachment and sale of the property sold to him by the heir of the judgment-debtor. His objection was, however, overruled by the executing Court, with the result that he filed the present suit for a declaration that the suit property was not liable for attachment and sale in execution proceedings of the decree obtained by the defendant, and for the alternative relief of a declaration that the property was liable to be sold subject to the mortgage incumbrance of Rs. 2,000 which the plaintiff had paid to a mortgagee in satisfaction of his mortgage on the attached property. The defendant contended that the sale to the plaintiff was hollow and that it cannot avail him as it was subsequent to the attachment of the property by him in his first darkhast, which was continued even after its dismissal.
3. The trial Court framed issues as to whether the attachment in the first darkhast was valid in law and whether it subsisted after the disposal of that darkhast; if not, whether the property was liable to be sold in execution of the decree obtained by the defendant; and if it was liable to be sold, what limitations should be imposed on the sale. It was held that the attachment in the first darkhast was valid and subsisting after its disposal, and that the property was, therefore, liable to be sold in execution of the defendant's decree. On that finding the suit was dismissed.
4. That decree has been reversed by the appellate Court, which held that the defendant's first darkhast for the attachment of the judgment-debtor's immoveable property was invalid inasmuch as the only relief asked for was the attachment and that too at the date when the decree had not become executable. The defendant had not obtained any attachment before judgment in his suit, so that there was no continuing attachment after the date of the decree. It further held that the order of the Court dismissing the darkhast for non-prosecution, but continuing the attachment, which purported to have been made under Order XXI, Rule 57, of the Civil Procedure Code, was erroneous inasmuch as it has been held by our as well as other High Courts that if a darkhast is dismissed for non-prosecution, the attachment ceased even though there was an express order to continue it. As a result it was held that the plaintiff purchased the property at a time when there was no subsisting attachment on the property, and he was therefore entitled to the relief of declaration prayed for by him.
5. The defendant has now appealed to this Court, and his contentions are, first, that the order of the Court dismissing the darkhast for non-prosecution and continuing the attachment is not made under Order XXI, Rule 57, and, secondly, that it was competent to him to apply for attachment even before the decree became executable under Section 151 of the Civil Procedure Code.
6. On the first point, it seems to me that the appellate Court was right in taking the order of November 8 to be under Order XXI, Rule 57. The order was clearly one of dismissal for non-prosecution, and as such it would fall within the purview of that rule. The further direction for continuing the attachment was, therefore, illegal, because it is expressly provided in that rule that upon the dismissal of such application, the attachment shall cease. I have held in Baba v. Kisan (1937) 39 Bom. L.R. 1105. that the word 'default' in Order XXI, Rule 57, of the Civil Procedure Code, in so far as it applies to the decree-holder, means default not merely in the sense of non-appearance or non-payment of the process fees, etc., but includes the case of non-prosecution as well. The present is a case of non-payment of the process fees as well as of non-prosecution. It is, therefore, clear, to my mind, that this order must be taken to have been passed under Order XXI, Rule 57, with the result that the order of continuing the attachment was invalid.
7. It is next contended that the order does not fall under that rule, because although the darkhast purports to be dismissed for non-prosecution, it was an erroneous order passed under a misapprehension as there was no prayer by the defendant in his darkhast for sale of the property. It is indeed true that there was no such prayer and the executing Court seems to have passed the order for the sale under an erroneous belief that there was such prayer. It is rather curious that neither the decree-holder nor the judgment-debtor pointed out to the Court, when the order for notice under Order XXI, Rule 66, was made that no such notice was necessary at that stage, because the darkhast did not pray for the relief of sale. Not only was it not pointed out, but so far as the present appellant, i.e. the decree-holder, was concerned, he did not pay the bhatta and allowed the darkhast to be dismissed for non-prosecution. If he had pointed out to the Court that there was no question of passing an order for sale, it is probable that the Court might have vacated its order for selling the property. But the order of November 8 does stand to this day without any application on the part of the defendant for review or an appeal against it. The result, therefore, is that that order, although passed under a misapprehension, is still there as a binding order and must be taken to be an order under Order XXI, Rule 57. On the principle of constructive res judicata, which also applies to execution proceedings, this order in the first darkhast must be regarded as binding on the defendant in the present, i.e. the second, darkhast, and he cannot be allowed to challenge it at the present stage. That being so, it must be taken that in spite of the order of the Court continuing the attachment on November 8, there was no legal and valid attachment after that date, and the plaintiff purchased the property free from any such attachment in July, 1933.
8. There is moreover another difficulty in the appellant's way and that is his prayer in the first darkhast which was filed only for the relief of attachment of the property at a time when the decree was not executable. It was not filed in the form of an ordinary application for attachment of the property before the darkhast was executable, but it was filed, as a regular darkhast in the executing Court. It is questionable whether the executing Court should have passed an order for attachment as prayed for before the decree became executable. The appellant contends that that order should be regarded as one under the inherent jurisdiction of the Court, and the argument is that just as a plaintiff can, during the pendency of a suit, apply for attachment before judgment under Order XXXVIII, a decree-holder can also apply for attachment of the property after the decree is passed but before it becomes executable; otherwise he would have no remedy if his judgment-debtor is going to dispose of the property between those two dates. Such a case would be very rare inasmuch as ordinarily a decree is executable immediately after it is passed. It is only in a case like the present where the judgment-debtor is given a period of six months for paying the decretal amount or where the decree is made payable by instalments some time after it is parsed and becomes executable on failure to pay one or more instalments, that such a question would arise. But it seems to me that if in such a case the decreeholder wants the relief of attachment, he cannot go to the executing Court and file a darkhast for the purpose of getting that relief. It may be that the Court passing the decree might give him the proper relief by the appointment of a receiver under Order XL, Rule 1, as a receiver can be appointed even after the passing of a decree. But, in any case, it seems to me that the procedure adopted by the defendant-decree-holder was not authorised by any of the provisions of the Civil Procedure Code. The defendant allowed the darkhast to continue as such even after the Court had issued the notice under Order XXI, Rule 66, and he ultimately allowed the darkhast itself to be dismissed for non-prosecution, although the attachment was continued. By his own conduct, therefore, he has allowed the execution proceedings to go on as if the executing Court had jurisdiction to proceed against the judgment -debtor's property in that darkhast, and that being so, in my opinion, he must take the consequences of proceeding in the manner in which he has done. I doubt very much whether the decree-holder can apply under Section 151, Civil Procedure Code, merely for attachment and that too before the decree becomes executable, but in any case such an application would, if at all, lie to the Court passing the decree. The executing Court will have jurisdiction only after the decree becomes executable. It seems to me to be clear in any case that the subsequent order of the Court on November 8 dismissing the darkhast for non-prosecution is governed by Order XXI, Rule 57, with the result that the attachment ceased in any case on that date. The plaintiff has, therefore, purchased the property free from such attachment.
9. The decree of the lower appellate Court, therefore, in my opinion, is correct, and the appeal is dismissed with costs.