John Beaumont, Kt., C.J.
1. These two appeals raise a similar point of law in execution and it is sufficient to state the facts in appeal No. 517.
2. The respondents in the year 1927 obtained a compromise decree against a judgment-debtor for payment of a sum of money and the judgment-debtor consented! to his property being attached. But it is in my opinion quite clear that there never was in fact any attachment. As pointed out by the Privy Council in Muthiah Chetti v. Pdaniappa Chetti : (1928)30BOMLR1353 . an order for attachment is one thing, and attachment another. Here there was no attempt to comply with the provisions of Order XXI, Rule 54, of the Civil Procedure Code Therefore in fact there was no attachment. However, the Court made an order for sale and sent the record to the Collector under Section 68 of the Civil Procedure Code, and the Collector proceeded to sell the properties in dispute, which are three survey numbers., viz., Nos. 7, 89 and 36, to the respondents, and the Mamlatdar thereupon asked the present appellant, who was in possession, to vacate. The appellant declined to vacate and started this suit for an injunction to restrain the respondents from interfering with his possession. The appellant had purported to purchase the suit properties from the judgment-debtor before the date of the sale, but after the record had been sent to the Collector. There having been no attachment of the property, the judgment-debtor prima facie would have been entitled to sell to the appellant. But it is admitted that by reason of paragraph 11 of the Third Schedule to the Civil Procedure Code the judgment-debtor could not convey any title to the property after the record had been sent to the Collector, The case therefore which the appellant makes is that the sale by the Court through the Collector without attachment was a nullity, and therefore the respondents are not entitled to oust him from possession.
3. The respondents object that the suit is misconceived, and certainly it is rather a curious form of procedure for a person, who is in possession of land without title and is therefore a trespasser, to try and prevent somebody who claims to be the owner from taking proceedings against him. As a rule the strength of a trespasser lies in defence, and not in offence. However, in this case the Mamlatdar had made a claim against the appellant for possession and he would have had to give up possession or else take some step to regularise his possession. I think, therefore, that he was entitled, in the peculiar circumstances of this case, to apply for an injunction.
4. The question which we have to determine is whether a sale in execution is a nullity if it is not preceded by attachment. That is a question on which there has been a conflict of opinion between benches of this Court of coordinate jurisdiction with ourselves, and we must decide on the merits which decision we think right.
5. I will consider the matter first as it arises under the Code apart from authority. Section 51 of the Civil Procedure Code provides that subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree (amongst other methods) by attachment and sale or by sale without attachment of any property. So that clearly under that section the Court can sell without attachment. Section 121 of the Civil Procedure Code provides that the rules in the First Schedule shall have effect as if enacted in the body of the Code. Then Order XXI, Rule 30, of the Civil Procedure Code, which deals with the mode of execution, directs that every decree for the payment of money may be executed by the detention in the civil prison of the judgment-debtor, or by the attachment and sale of his property, or by both. And Order XXI, Rule 64, of the Civil Procedure Code, which is headed 'Sale generally', 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. Now the question seems to me to be whether the effect of Rules 30 and 64 of Order XXI is to limit the power expressly given by Section 51 to sell without attachment. In my opinion, so to hold would be to place too wide a construction upon the language of Rule 30 and Rule 64. It is true that both those rules do enable the Court to execute a decree by attachment and sale, but neither of them expressly negatives the power given by Section 51 to sell without attachment, and normally the judgment-creditor would for his own protection attach property. If he does not do so, he runs the risk of the judgment-debtor making a title to some third party ; but it is difficult to see why, if the judgment-creditor chooses to dispense with attachment, that should be held to nullify a sale in execution. Most of the High Courts take the view that absence of attachment is an irregularity, but does not vitiate the sale. I have some difficulty in appreciating that point of view. It seems to me that if the effect of Section 51 and Rules 30 and 64 of Order XXI of the Code read together is to provide that the Court can only sell property which it has attached, then it cannot sell property which it has not attached, and any attempted sale is a nullity. On the other hand if the effect of Rules 30 and 64 of Order XXI is not to take away the express power given by Section 51 to sell without attachment, then I cannot see why the execution creditor is guilty of any irregularity in not having adopted a course which he was not bound to adopt. In my opinion, as I have said, the rules in question do not deprive the judgment-creditor of the power expressly given to him by Section 51 to sell without attachment. That view, however, did not prevail in this Court in Sorabji Coovarji v. Kala Raghunath I.L.R. (1911) 36 Bom. 156 : 13 Bom. L.R. 1193, where Sir Baal Scott C.J. in giving the judgment of the Court, said : 'Property can only be brought to sale after it has been duly attached', and he then held that although the property had in that case been attached, the attachment had been brought to an end under Rule 55, Order XXI, by payment to the judgment-creditor before the sale, and the sale was set aside, So that that case is an authority for the proposition that a sale in execution without attachment is a nullity ; but it is to be noticed that the Court gave no ground for its opinion, and it appears from the argument that the Court relied on a decision of the Allahabad High Court Mahadeo Dubey v. Bhola Nath Dichit I.L.R. (1882) All. 86. which was given under the old Code which contained no section corresponding to Section 51. It may well be that if Section 51 had been brought to the attention of the Court, the decision would have been different. That case has not met with the approval of other High Courts. The question then came before Mr. Justice N.J. Wadia sitting in second appeal and he noted the difference between the opinion of this High Court in Sorabji Coovarji v. Kala Ragkwiath and the opinions of other High Courts, and he followed the opinions of other High Courts and held that the omission to attach property was merely an irregularity which did not vitiate the sale. This decision is perhaps open to the comment that the decision of this Court was binding on the learned Judge whereas the decisions of the other High Courts were not. Then there was an appeal from Mr. Justice N.J. Wadia's decision under the Letters Patent, and the appeal was heard by Mr. Justice Broomfield and Mr. Justice Tyabji, and the judgment of the Court was given by Mr. Justice Broomfield Sakharlal v. Pirojshah : AIR1936Bom315 . As I understand his judgment, he was of opinion that a sale was not vitiated by absence of previous attachment, though he regarded such absence as an irregularity. But he said that he would have felt a difficulty in differing from the decision in Sorabji Caovarji's case (supra) if the case had not been distinguishable. He distinguished the case on the ground that in the case with which he was dealing, the property sold had been attached, but the attachment had been raised at the instance of the Official Assignee because the judgment-debtor had become insolvent. Mr. Justice Broomfield says that it is difficult to see why the sale was a nullity merely because the attachment ceased to be effective. But with all respect I am quite unable to follow the distinction on which the learned Judge relies. In Sorabji Coovarji's case there had been a previous attachment which had been got rid of by payment. It seems to me to make no difference whether an attachment has been got rid of by payment or by a subsequent order of the Court, and in any case the existence of a previous attachment seems to me irrelevant. The question is whether there was an effective attachment at the time of the sale. In my opinion it is quite impossible to reconcile the decision of this Court in Sakharlal v. Pirojshah with the decision of this Court in Smabji Coovarji v. Kala Raghmtath ; and there being conflicting decisions of Courts of coordinate jurisdiction, we are entitled to adopt our own view. In my opinion the absence of attachment did not vitiate the sale for the reasons which I have already given.
6. Both appeals fail and must be dismissed with costs.
7. I agree and have nothing to add.