1. This is an appeal under the Letters Patent from a judgment of Mr. Justice N. J. Wadia in execution proceedings. Certain property was sold in execution of a money decree. An application was made to set aside the sale which was dismissed by the trial Court. Mr. Justice N. J. Wadia on appeal confirmed the trial Court's order. The date of the sale was December 31, 1931. The property consisted of two lots, Nos. 3 and 13, and the appellant before us, one Sakharlal, had a half share in lot No. 13 only, which is a house. Lot No. 3 and half of lot No. 13 belonged to another judgment-debtor, Balkisandas Tulsidas. The grounds on which the sale was sought to be impeached were : firstly, that there was a wrong description of the incumbrances on the property in the sale proclamation : it mentioned that there was a charge of Rs. 31,000 and odd on the whole of lots Nos. 3 and 13, whereas, as a matter of fact, this charge really subsisted only on the property belonging to Balkisandas; secondly, there was no attachment subsisting at the time of the sale; thirdly, the sale was stopped prematurely; and fourthly, the house was in the occupation of the appellant who is an agriculturist and was therefore not liable to be sold.
2. The only point of substance in this appeal is that relating to the question of attachment. As regards the inaccurate statement in the proclamation about the charge on the property, there had been several previous proclamations in which the same mistake occurred. The judgment-debtor had clear notice of it and ample opportunity of getting it corrected, and the cases cited by N. J. Wadia J., show that under the circumstances he cannot make a grievance of it after the sale is completed. The same considerations apply to the objection that the house cannot be sold because it is the appellant's residential house. Moreover, as N. J. Wadia J. says, there is no evidence that the house was actually in his occupation. The point about the time of the sale has not been pressed. The evidence shows that the sale was advertised to take place between the hours 11 a.m. and 5 p.m., and it was actually commenced at 12 noon and completed at 3 p.m.
3. The objection that there was no subsisting attachment is not quite so easily disposed of. The facts in this connection are these. Both properties, lots Nos. 3 and 13, were duly attached in the execution proceedings, and the house, lot No. 13, which, is the only property in which the appellant is interested, was still under attachment at the time of the sale. But the other judgment-debtor Balkisandas had become insolvent, and on the application of the Official Assignee of the High Court the attachment on his property was raised by the executing Court on December 19, 1927. Subsequently the adjudication order was annulled, and on being informed of this, the Subordinate Judge ordered the sale of the property of both judgment-debtors to proceed without there having been a fresh attachment. The question is whether under these circumstances the sale was without jurisdiction and a nullity, or whether the absence of an order reviving the attachment was merely an irregularity. In the latter case it is conceded that it would not be a ground for setting aside the sale, no damage having been caused to the appellant thereby.
4. Looking at the question apart from authority, I can find nothing in the Civil Procedure Code itself which lends much support to the view that the sale must be regarded as null and void. Section 51 which describes the powers of the Court to enforce execution in general terms says that, subject to such conditions and limitations as may be prescribed, the Court may on the application of the decree-holder order execution by attachment and sale or by sale without attachment. Order XXI, Rule 30, which deals with execution of decrees for the payment of money, says that such a decree may be executed by the imprisonment of the judgment-debtor or by the attachment and sale of his property, or by both. The prescribed procedure therefore is that the property should be attached before sale. But that was done in this case. Rule 64 of Order XXI provides that any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold.
5. Attachment is not of course a mere formality. It is notice to the judgment-debtor of the intended sale. It is also notice to third parties who may wish to prefer claims under Order XXI, Rule 58. It may perhaps be argued under these provisions of the Code that the Court has no power to sell property in execution of a money decree without having first levied an attachment. But if attachment has been levied as in this case, and if the necessary notice is given to all concerned, it is difficult to see why the sale must necessarily be a nullity, merely because the attachment has ceased to be effective. The absence of a subsisting attachment would no doubt be a material irregularity. If substantial injury were caused thereby, it would be a ground for setting aside the sale on application under rule 90. But I do not think there is anything in the Code, which constrains one to hold, of makes it reasonable to hold, that it must invalidate the sale, apart from any question of damage.
6. The case-law on the question has not been consistent, but most of the High Courts are now agreed that the omission to attach property before sale is merely an irregularity and does not ipso facto render the sale void : Natechchandra Mitra V. Molla Ataul Hug I.L.R. (1929) Cal. 1206, Sheodhyan v. Bholanalh I.L.R. (1899) All. 311, Subramania Aiyar v. Krishna Aiyar (1925) 51 M. L. J. 172, Raja Wazir Narain Singh v. Bhikhari Ram I.L.R. (1922) Pat. 207, and Ma Pwa v. Mahomed Tambi I.L.R. (1923) Ran. 533 N. J. Wadia J. has accepted this view, and on principle I am inclined to agree. I do not think that Thakur Barmha v. Jiban Ram Manvari (1913) L.R. 41 I. A. 38 : 16 Bom. L.R. 156 - decides anything to the contrary, and I agree with the construction placed upon that case in Nareschandra Mitra v. Molla Ataul Huqr I.L.R. (1929) Cal. 1206, I prefer however not to express any final opinion beyond what is necessary for the purposes of the case. The property here was duly attached in the first instance. The attachment was withdrawn owing to the insolvency of the judgment-debtor and the vesting of his property in the Official Assignee. When the adjudication order was annulled, the ground on which the attachment had become ineffective ceased to hold good. That is not the same thing as saying that the attachment was revived, but the omission to revive it under the circumstances was in my opinion no more than an informality, and I think it would be most unreasonable to hold that it is a ground for setting aside the sale, when admittedly no damage had been caused to the appellant.
7. The difficulty is the ruling of this Court in Sorabji Coovarji v. Kala Raghunath I.L.R. (1911) 36 Bom. 156 : s.c. 13 Bom. L.R. 1193. In that case, after the property had been attached and notified for sale, the judgment-debtor paid up the decretal amount to the attaching creditors, the effect of which was that the attachment was deemed to be withdrawn under Order XXI, Rule 55. Other judgment-creditors who had not attached the property then applied for rateable distribution and the Court allowed their application and directed that the sale of the property should proceed. In appeal this Court set aside the sale, and Scott C. J. observed (p. 163) :-
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. We think this is clear from the terms of Rule 55, of Order XXI.
8. If this case were clearly in point, I must say I should feel some difficulty in declining to follow it. It has been criticized adversely in some respects, as may be seen from the note in Sir Dinshah Mulla's Civil Procedure Code under Section 73, but not, I think, in respect of the finding as to the invalidity of the sale. In a later case, Vaikunt Shridhar v. Manjunath Madhav I.L.R. (1920) 44 Bom. 860 : 22 Bom. L.R. 640, the question whether a sale by the Court in the absence of any prior attachment would be valid or not was expressly left undetermined.
9. But in my opinion Sorabji v. Kala does not lay down any general proposition which governs the facts of the present case. It was a case under Order XXI, Rule 55, which provides that attachment comes to an end when the decree is either satisfied or set aside, and in either of those events it may well be argued that the Court has no jurisdiction left to proceed further with the execution. It does not appear from the report of the case that there were any execution proceedings pending at the instance of the other judgment-creditors except an application for rateable distribution. There was a substantial question of jurisdiction involved in that case, whereas here, as far as I can see, there is nothing but a technicality. If the Court had intended td lay it down, as a general rule, that a sale in execution without a subsisting attachment is necessarily void in every case, there would presumably have been some discussion of the authorities on the point, and in particular the Privy Council cases such as Tassaduk Rasul Khan v. Ahmad Husain and Malkarjun bin Shidramappa Pasare v. Narhari bin Shivappa . As it is, no reasons were given except a reference to Rule 55. Sorabji V. Kala may, therefore, be distinguished.
10. That being so, I have no hesitation in confirming N. J. Wadia J.'s ruling in this case.
11. The result is that the appeal fails and must be dismissed with costs.
12. I agree.