P. Chandra Reddy, C.J.
1. This civil miscellaneous second appeal was referred by Ranganadham Chetty J. to be heard by a Bench, as he thought that it raises an important question relating to the interpretation of Order 21, Rules 54 and 57, C, P. C.
2. The appellant is the purchaser of the properties in dispute in a Court auction. These properties were brought to sale in execution of a decree obtained by the predecessors-in-interest of the appellant in O. S. No. 102 of 1948.
3. The subject-matter of the appeal, which is land of an extent of Ac. 6-95 cents, was attached by the plaintiff in that suit before judgment and notice of the attachment was served on the respondent. The respondent had in his favour an agreement of sale of this property executed by the judgment-debtor and other members of his family on 5-3-1948, i. e., mote than six weeks before the institution of O. S. No. 102 of 1948. He obtained a sale deed in respect of this land on 2-6-1948.
4. O. S. No. 102 of 1948 was decreed on 6-10-1948. Thereafter, the decree holder filed E. P. No. 116/49 ior sale of this property and this was dismissed on 17-10-1949 tor default ot the decree holder. The next E. P. also shared the same fate but for want of bidders. For the third time, an E. P. was taken out in 1951. Pending these proceedings, the respondent intervened with E. A. No. 807 of 1951, the claim petition, on 4th September 1951- The trial court rejected this application and directed the sale to proceed and the property was actually sold and purchased by the appellant; and the sale was confirmed on 14-8-1952. The matter was taken in a appeal to the subordinate Judge's Court, by the res- pondent. By way of abundant caution, ho also laid an action (O. S. No. 242 of 1952) under Order 21, Rule 63 C. P. C.
5. The appellate court allowed the appeal and remanded the case to the trial court with a direction that E. A. No. 807/51 should be tried along 'with the suit (0. S. No. 242 of 1952) liled by the respondent.
6. The trial court again dismissed the claim peti- tion as also the suit in the view that the agreement of the sale relied on by the plaintiff and the sale deed dated 2-6-1948 were not true and supported by consideration and that they were brought into existence collusively and fraudulently with a view to defeat the rights of the attaching decree-holder.
7. The respondent brought two appeal to the Subordinate Judge's Court, one against the order of his claim petition and another against the decree and judgment in O. S. No. 242/52. The Subordinate Judge disagreed with the trial court on the question as to the nature ot the transaction and reversed the decree under appeal.
He was further of opinion that the sale deed dated 2-6-1948 was valid and conferred a title on the vendee, despite the attachment before judgment, for the reason that the attachment ceased, having regard to the fact that the first execution petition was dismissed for default of tho decree-holder. The learned Judge thought that it was unnecessary to allow the appeal against the judgment in O. S. No. 242 of 1952, as the decision in the claim petition governed that also. The alienee from the auction purchaser, who is aggrieved by this decision, has preferred this civil miscellaneous second appeal.
8. When the matter came for hearing before Ranganadham Chetty J. in June 1959, it was argued before him that the decisions of the Madras High Court which ruled that even if the executing court while dismissing the execution petition for default of the decree-holder does not specifically terminate the attachment, tho attachment ceases by reason of the wording of Order 21, Rule 57 C. P. C. required reconsideration. It was urged before him that in the absence of direction for the cessation of a subsisting attachment made by the court, the attachment would continue and that this aspect of the matter was overlooked in the Madras rulings. The learned Judge thought that there was some substance in this argument and, therefore, referred the matter to a Bench.
9. Order 21, Rule 57, which is the provision that falls to be considered runs as follows:
'(1) Where any property has been attached in execution of a decree and the court hearing the execution application either dismisses it or adjourns the proceedings to a future date, it shall state whether the attachment continues or ceases......
Provided that when the Court dismisses such an application by reason of the decree-holder s default, the order shall state that the attachment do cease.
XX XX XX
10. The view was consistently taken by the Madras High Court that if default was committed by the decree-holder consequent upon which the execution petition was dismissed, the attachment would terminate even in the absence ot a specific order to that effect. Venkatarao v. Suraya Rao, : AIR1950Mad2 contains an elaborate discussion on this subject. Satyanarayana Rao J. who delivered the opinion of the Court, dealt with this matter at great length. He rejected the contention that the attachment would continue so long as the court had not given a speciiic direction that it would cease. Reference was made by the learned Judge to the previous rulings of that court as also of other High Courts.
11. This was followed by one of us in Maham-mad Gaffar Baig v. Abdul Khaleel Khan, 1956 Andh WR 727: (AIR 1957 Andh Pra 991). We are not convinced that the ruling of the Madras High Court requires any re-consideration. On the other hand, we are satisfied that they represent the correct law. Having regard to the mandatory nature ot the language employed in Order 21, Rule 57 C. P. C. the executing court has no power to continue the attachment when once the execution petition is dismissed for delault of the decree-holder. By not stating that the attachment would cease, the executing court cannot continue the attachment when the petition was dismissed for default of the decree-holder. The result contemplated in the proviso would follow as a necessary corollary if the application is dismissed for default of the decree-holder, irrespective of whether the attachment is raised specifically by that court or not.
12. Alternatively, it was contended by Sri Par-thasarathy, learned counsel for the appellant, that Order 21, Rule 57 C. P. C. is not attracted to a case of attachment before judgment and that the penalty contemplated by that rule is incurred only with regard to application in which tho attachment is made in execution of a decree. It is urged by the learned couasel that when attachment is clfected before judgment, the decree-holder cannot be punished tor lack of diligence in prosecuting the execution petition since the attachment was not made in the execution petition.
The learned counsel lays emphasis on the clauses 'attached in execution of a decree' and 'dismissed such an application etc.' occurring in the proviso to Order 21, Rule 57(1) C. P. C.
13. We do not think we can accede to this proposition. It is laid down in Meyappa Chettiar v. Chidambara Chettiar, ILR 47 Mad 483 at p. 502: (AIR 1924 Mad 494 at p. 500) (FB) that attachment before judgment is also governed by Order 21, Rule 57 G. P, C., since the property attached in execution within the ambit of Order 21, Rule 57 includes property attached before judgment where there has been a decree followed by execution petition for the purpose of bringing the attached property to sale.
14. Repelling a similar contention, Coutts Trotter J. (as he then was) observed:
'In my opinion, when a decree-holder having obtained his decree takes out an execution petition he has, in effect, elected, to take the benefit of Order XXXVIII, Rule 11 and asks the court to treat his attachment henceforth as an attachment in execution of the decree which he is seeking to execute. When he has made that election, it seems that his attachment thereupon becomes subject to those requirements of diligence laid down by order XXI, Rule 57. I cannot assent to the view that attachment before judgment and attachment in execution are two such wholly different things as to make any provision applicable in express terms to the one in no event applicable to the other because, in my view, as soon as a decree holder applies for execution on the strength of the 'attachment that he has obtained before judgment and which he seeks alter judgment to use as validating the sale for which he is applying, he thereby by his own act asks the court to treat his attachment as being an attachment in execution. I would therefore answer the question propounded in the negative'.
If we bear in mind the principle underlying the last part of the passage, the language of the proviso to Order 21, Rule 57 C. P. C. viz., 'when the court dismisses such an application' referring to the application in which the attachment has been made, does not present any difficulty. As pointed out by Courts Trotter J., for the purpose of Order 21, Rule 57, the statement must be deemed to have been made for the first time when the first execution petition was filed after the decree. We cannot, therefore, give effect to the contention of the learned counsel for the appellant that Order 21, Rule 57 has no application to the instant case.
15. It is true that the penalty specified in the proviso would attach itself only when the first execution petition in which the attachment was made was dismissed for default and not when subsequent execution petitions were dismissed for default. But that dots not help the appellant for the reason that in this case it was the first execution petition that was dismissed for default.
16. It was lastly submitted by the learned counsel for the appellant that as the lower appellate court had not given a finding on the question of consideration for the sale in favour of the respondent, we should call for a finding on that question. We do not think that this argument is substantial. We have gone through the judgment of the lower appellate court carefully and we find that the learned Judge had considered this aspect of the matter in paragraphs 5 and 6 of the judgment and arrived at the conclusion that the sale in favour of the respondent was a true and genuine one and was supported by consideration. It was his view that at the time of the agreement, a sum of Rs. 2,000/- was paid and the balance of the consideration was paid to the vendor before the sub-registrar. We do not, therefore,think that there is any justification in the complainsthat the lower appellate court has not gone into thisquestion.
17. In the result the judgment under appeal is upheld and this appeal is dismissed with costs.