1. The facts of this case are the following: On the 18th June 1884, a suit was instituted by the present respondent, Pitam Mal, against the appellant, Ram Chand, for recovery of money, and during the pendency of that suit, on the 8th January 1885, the aforesaid respondent applied, apparently within the meaning of Section 483 of the Code of Civil Procedure, for attachment of property belonging to the defendant. The application was granted on the same day, and attachment before judgment appears to have been made on the 11th January 1885. It is not clear whether the requirements of Section 484 or Section 485 of the Code were duly observed. The suit, however, was dismissed by the first Court on the 30th March 1885; but there seems to have been no specific order made by that Court withdrawing the attachment.
2. The decree of the 30th March 1885, was however appealed to this Court, and the appeal resulted in decretal of the plaintiff Pitam Mal's suit on the 2nd February 1886.
3. It was in execution of this last decree that this litigation was commenced by an application of the decree-holder, Pitam Mal, to execute the decree. The application was made on the 13th November 1886, and on the 18th December 1886, the application was granted by an order which directed that the property of the judgment-debtor should be notified for sale on the 1st February 1887. Accordingly, on the 21st December 1886, a sale notification was issued; and the judgment-debtor, Ram Chand, by two applications, one made on the 25th January 1887, and the other on the 31st January 1887, prayed for postponement of the sale, apparently under the provisions of Section 305 of the Code of Civil Procedure. Both these applications were, however, disallowed, and the sale of the judgment-debtor's property took place on the 1st February 1887, at which sale the properties were purchased as follows:
1. One kothi with shops in Mathra, purchased by Pitam Mal, decree-holder, for Rs. 3, 350.
2. One kutcha shop in Mathra, purchased by Pitam Mal, decree-holder, for Rs. 110.
3. One pucka and stone-built stable in Mathra, purchased by Panna Lal, for Rs. 110.
4. One-fourth of a pucka and stone-built building in Mathra, purchased by Pitam Mal, for Rs. 135.
4. It will appear from the above specification that, with the exception of property No. 3, all the other properties were purchased by Pitam Mal (decree-holder) himself, and the connection of Panna Lal with this litigation seems to be due entirely to his purchase of the property No. 3 abovementioned.
On the 24th February 1887, the judgment-debtor, Ram Chand, appellant, preferred objections to the auction-sale of the 1st February 1887, upon various grounds mentioned in the judgment of the Court below, and that application was resisted by Pitam Mal, the decree-holder, upon pleas which are also stated in the judgment of the lower Court, and need not be repeated here.
5. The judgment-debtor Ram Chand's objections appear to have been made with the object of setting aside the auction-sale of 1st February 1887, upon grounds contemplated by Section 311 of the Civil Procedure Code; but those objections have been disallowed by the lower Court, which has held that the attachment before judgment was a sufficient attachment, because although the suit, during the pendency whereof the attachment was made ended in dismissal, the attachment itself had never been withdrawn; that the sale-notification having been affixed to the door of the Court-house, it was not shown that the sale had taken place within thirty days of the issue of the sale-notification; that a proclamation by beat of drum-was duly made and the 'notifications were duly issued and affixed at the locality of the property;' that 'the law does not require any proclamation to be made by beat of drum at the time of sale; and that there was actually made a proclamation at time of the sale of the property in suit such as is generally made at such times by amins conducting sales; 'that when a time for sale is specified in a notification,' it is not thereby intended that the sale must begin exactly at the same time and on the same day as mentioned in the notification. 'Finally, the lower Court has held that' no irregularity having been made in the issue of notification and conducting the sale, no finding need be made as to the point whether or not the property in suit has been sold for an inadequate price; 'but to this view of the law the learned Subordinate Judge adds the following observation: 'However, as regards the question of the inadequacy of price, I hold that the alleged rate is not proved by any oral or documentary, reliable or trustworthy evidence.' The effect of the learned Subordinate Judge's judgment is to confirm the sale of the 1st February 1887, and the order must be understood to have been passed under Section 312 of the Code of Civil Procedure, disallowing the objections raised by the judgment-debtor, Ram Chand, appellant. It has been argued by the learned Pandit, on behalf of the respondent, that the order of the lower Court, so far as it disallowed objections to the sale, is not appealable within the meaning of Clause (16) of Section 588 of the Code of Civil Procedure; but this contention is opposed to the Full Bench ruling of this Court in Tota Ram v. Khub Chand I. L. R., 7 All., 253, where I stated my reasons for holding that such orders are appealable. To the reasons I then stated I have nothing to add, beyond saying that in this ease the order of the lower Court disallowing the objections of the judgment-debtor to the auction-sale of the 1st February 1887, and confirming that sale is one and the same order, and, as such, appealable under Clause (16) of Section 588 of the Code of Civil Procedure. The rest of the argument addressed to us on behalf of the parties, however, raises the following questions for determination:
(1) Whether an attachment before judgment, such as the attachment of the 11th January 1885; was not a good and valid attachment for purposes of the execution of the High Court's decree of the 2nd February 1886, notwithstanding the dismissal of the suit by the first Court on the 30th March 1885?
(2) If not, whether the absence of a valid attachment at the time of sale of the 1st February 1887, can be regarded as 'a material irregularity in publishing or conducting 'the sale so as to be questioned under Section 311 of the Code?
(3) If so, whether the action of the judgment-debtor in making the applications of the 25th January 1887, and 31st January 1887, praying for postponement of the sale, amounts to a waiver on his part of any irregularities so as to preclude him from contesting the sale upon the ground that there was no valid attachment?
(4) If so, whether such irregularity would in itself be sufficient to vitiate the sale without proof of 'substantial injury' within the meaning of that section?
(5) Whether in this case any such 'substantial injury' is proved as is contemplated by Section 311 of the Code?
6. As to the first of these questions, it is necessary to premise that we cannot go behind the Full Bench judgment of this Court in Mahadeo Dubey v. Bhola Nath Dichit I. L. R., 5 All., 86, where the whole Court unanimously adopted the view of my brother Straight that a regularly perfected attachment is an essential preliminary to sales in execution of simple decrees for money; and where there has been no such attachment, any sale that, may have taken place is not simply voidable but de facto void.
7. This being so, we have been referred by the learned Pandit to the provisions of Section 483, 485, 488 and 490 of the Code of Civil Procedure; and also to the form No. 163 in schedule IV of the Code relating to attachment before judgment of immoveable property, in which form the words 'until the further order of this Court' occur; and relying upon these provisions, the learned pleader argues that inasmuch as in the present case no further order withdrawing the order of attachment before judgment was passed the attachment must be taken to have subsisted for all purposes of execution, including the sale of the 1st February 1887. On the other hand, Mr. Colvin relies upon the last part of Section 488 to show that an attachment before judgment comes to an end' when the suit is dismissed;' and the learned Counsel also lays stress upon the provisions of Section 490, and argues that the words of that section contemplate that it is only when a decree is given in favour of the plaintiff that re-attachment in execution of such decree is dispensed with, implying that such attachment is necessary where the suit ended in dismissal of the plaintiff's claim. For this contention the learned Counsel also relies upon the ruling of the learned Chief Justice in Chunni Kuar v. Dwarka Prasad, Weekly Notes, 1887, p. 297, where it was held that a temporary injunction under Section 492, notwithstanding the use of the phrase 'till further orders,' comes to an end on the termination of the suit(sic) which such injunction was passed, although no express order had been made by the Court withdrawing or setting aside such injunction.
8. I am of opinion that this contention is sound, and that the case last cited, though relating to temporary injunction, proceeds upon a principle analogous to attachments before judgment, both being ad interim proceedings which naturally cease to have any force as soon as the suit itself, in respect of which they were taken, comes to a close. In other words, an attachment before judgment under Section 488, like a temporary injunction under Section 492, becomes functus officio as soon as the suit terminates. It is true, as was argued by the learned Pandit, that Section 492 does not expressly mention an order by the Court removing or setting aside the injunction, and in this respect the language of Section 488, as to the removal of attachment before judgment, is more express; but I do not think that this circumstance alters the principle applicable to ad interim proceedings, nor do I think that the last part of Section 488 requiring the Court to remove the attachment is intended to be more than directory, or in other words so imperative as to render an attachment before judgment a perpetual attachment in the absence of an order removing the same. For this view I rely upon the reasoning employed by the learned Chief Justice in connection with temporary injunctions in the case which I have already cited. If attachments before judgment, such as those contemplated by Section 485, were intended to continue operative notwithstanding the dismissal of the suit, I should say that Section 490 of the Code would have been a surplusage, for that section implies that, even where a suit is decreed, an attachment before judgment would come to an end with the decision of the suit but for the provision which that section has made. This view is in accord with the judgment of Sir Louis Jackson in Mohee-ood-deen v. Ahmed Hossein, 14 W. R., 284, and I hold that that ruling, though passed under the Code of 1859, is applicable in principle to this case. Pandit Ajudhia Nath, on behalf of the respondent, has indeed argued that the phrase 'any decree which may be passed in the suit,' as it occurs in Section 485 of the Code, must be understood to mean that an attachment before judgment is to remain operative for the satisfaction of 'any decree' which may be passed in any appeal made from any decree in such suit; and upon this ground the learned pleader contends that the High Court's decree of the 2nd February 1886, was a decree in the 'suit.' I cannot accept this contention, because it would render Section 485 inconsistent with the last part of Section 488, which directs the Court passing the order of attachment before judgment to remove such attachment 'when the suit is dismissed' It could scarcely be contended that during the interval between the dismissal of the suit on the 30th March 1885, and the filing of the appeal to this Court which resulted in the decretal of the claim. on the 2nd February 1886, there was any litigation pending in any Court; and if I were to hold that the attachment of the 11th January 1885, subsisted daring that interval, I should be laying down the untenable rule that an ad interim order survives the pendency of the Main litigation itself; and indeed if I were to bold this, I should be driven to the logical conclusion that such interim order of attachment subsists for ever whether there is or is not an appeal, unless and until such order is expressly withdrawn. I hold therefore inasmuch as the suit in which the attachment of the 11th January 1885 was made terminated in dismissal on the 30th March 1885, that attachment ceased to be operative after that date, and that, since no further proceedings are alleged to have been taken to attach the property in execution of the High Court's decree of the 2nd February 1886, there was no valid attachment subsisting on the 1st February 1887, when the judgment-debtor's properties were sold by auction.
9. Upon the second question above enunciated by me, the learned Pandit has argued that absence of a valid attachment at the time of sale is not such 'a material irregularity in publishing or conducting' the sale as Section 311 of the Code contemplates; and that even accepting the Full Bench ruling in Mdhadeo Dubey v. Bhola Nath Dichit I. L. R., 5 All., 86, such questions cannot be agitated by the judgment-debtor after the sale has actually taken place. For this contention the learned pleader relies on Gangathara Panditha v. Rathabai Ammal I. L. R., 6 Mad., 237, where it was held that after a sale of land in execution of a decree and before its confirmation the judgment-debtor cannot object to the validity of the sale on the ground that the execution of the decree is barred by the provisions of Section 230 of the Code of Civil Procedure. On the other hand, Mr. Colvin, in resisting this contention, relies on Imamumissa Bibi v. Liakat Husain I. L. R., 3 All., 424, and Ramessure Dassee v. Doorga Dass Chatterjee I. L. R., 6 Cal., 103, the effect of which cases is to lay down the rule that an omission to give the notice required by Section 248 of the Code to the judgment-debtor affects the regularity of the sale, and might be dealt with as a matter falling within the purview of Section 311 of the Code of Civil Procedure. The learned Counsel further relies on Bakhshi Nand Kishore v. Malak Chand, I. L. B., 7 All., 289, where Oldfield, J., with my concurrence, held that an infringement of the rule contained in Section 290 of the Civil Procedure Code, is an irregularity vitiating a sale in execution of decree, and is something more than a material irregularity in publishing a sale to which Section 311 refers. Again, the learned Counsel cites Jasoda v. Mathura Das I. L. R., 9 All., 511, to which the learned Chief Justice and myself were parties, and we held that non-compliance with the provisions of Section 287 and 290, which sections provide for the contents of the proclamation of sale and the period at which such sale should be held after the proclamation, is more than mere irregularity, and that it must be taken to have caused such substantial injury as would vitiate the sale within the meaning of Section 311 of the Code of Civil Procedure. In delivering my judgment in that case, I gave expression to a doubt as to whether 'a material irregularity' within the meaning of the first paragraph of Section 311 would not in itself be sufficient to justify a Court in setting aside a sale without inquiring whether such irregularity had resulted in 'substantial injury' within the meaning of the second paragraph. The view so expressed is contested by the learned Pandit on behalf of the respondent, and I shall presently consider it in deciding the third point in the case. But so far as the second point is concerned, I am of opinion that the authorities cited by Mr. Colvin, and already referred to by me, justify me in holding that a broad and liberal construction must be placed upon the phrase 'a material irregularity in publishing or conducting' a sale as that phrase is employed in the first paragraph of Section 311 of the Code. The words 'publishing or conducting' are words of a very general import, and unless there is anything in the Code to restrict their ordinary meaning, the recognised rules of interpreting statutes require that such interpretation should be in the ordinary sense of the words It is probably not easy to define exhaustively what matters would fall under the category of material irregularity in publishing or conducting a sale; but the point here is limited to the question whether absence of attachment at the time of the sale is any such material irregularity.
10. I must answer the question in the affirmative, consistently with the principle upon which the Full Bench ruling of this Court in Mahadeo Dubey v. Bhola Nath Dichit I. L. R., 5 All., 86, and the other cases cited by Mr. Colvin proceed. It seems to me that there is a distinction between matters which relate to the capability of a decree for execution and matters which do not relate to such capability, but to the mode in which the decree is to be executed and satisfied. The Code of Civil Procedure has, indeed, placed both these classes in Chapter XIX under the general heading of rules relating to the execution of decrees. But that chapter is sub-divided into various headings mentioned in my brother Straight's judgment in the Full Bench case just referred to. Heading D, which consists of only one Section (244), describes questions to be decided by the Court executing the decree, and it seems to me that even the general terms of Clause (c) of that section cannot be understood to include such matters as are contemplated by Section 311 of the Code, because when a sale has taken place, auction-purchasers, who, as such, are no parties to the decree, become interested in such questions, and become necessary parties to applications for setting aside sale. The provisions of Section 244 being thus unavailable to the judgment-debtor in cases where a sale has actually taken place without any attachment, it can only be under Section 311 of the Code that he has his remedy for setting aside the sale, upon the ground that absence of attachment was 'a material irregularity' within the meaning of that section. Nor do I think that it is extending the meaning of the phrase too far.
11. The general principle of law is that the only person who can sell property is the owner, and it is only by reason of statutory provisions arising from the exigencies of the administration of justice that the Courts possess authority to order compulsory sales, such as auction-sales in execution of decrees. But in conferring this power, the law has provided specific rules of procedure in order to guard against injustice. Among those safeguards attachment is perhaps the most important preliminary to bringing property to auction-sale. It is the first step which the Court in executing simple money-decrees has to take to assert its authority to bring property to compulsory sale, and I do not see why the omission to take such a step should not be regarded as a material irregularity within the meaning of Section 311 of the Code. Objections based upon the absence of attachment are not objections which attack the capability of a decree for execution, as was the case in Gangathara Panditha v. Rathabai Ammai I. L. R., 6 Mad., 237, where the objection upon which sale was sought to be set aside was that the decree itself was barred by limitation. The nature of such an objection is of course such as would fall under Section 244 of the Code: and the learned Judges in that case accordingly held that the objection was too late when made after the sale had actually taken place, and the proper occasion for such objection was before the sale took place. Now, in cases where no attachment has taken place, and property is proclaimed for sale under Section 287 of the Code, it could scarcely be expected that the judgment-debtor would take proceedings to secure a valid attachment of the interests of the opposite party, namely, the decree-holder. And if this is so, it seems that the only opportunity which the judgment-debtor could have for proffering any objections as to the absence of a valid attachment would be after the sale has actually taken place.
12. The learned Pandit has, however, in arguing the third point, contended that in this case the action of the judgment-debtor in making the applications of 25th January 1887, and 31st January 1887, praying for postponement of the sale, amounted to waiver on his part of any such irregularity as would arise from the absence of attachment; and for this contention the ruling of the Privy Council in Girdhari Singh v. Hardeo Narain Singh, L. R., 3 Ind., Ap. 230, and Macnaghten v. Mahabir Pershad Singh I. L. R., 9 Cal., 656, are cited. In the former of these cases the judgment-debtor obtained a postponement of sale upon an express stipulation of 'the attachment and notification of sale being Malntained,' and the order of postponement having been made in those terms, the Lords of the Privy Council held that the judgment-debtor could not after the sale complain of any irregularity in such notification. The case, however, is distinguishable from the present, because here no such express specification, as to the validity of the notification, or its being allowed to be Malntained, was made; and in the next place, neither of the applications for postponement of sale was granted. In the latter case, all that the Lords of the Privy Council ruled was that an objection as to any particular irregularity could not be taken for the first time in the Court of appeal. Such however is not the case here, for the objection was taken in the Court of First Instance. I am therefore of opinion that neither of these Privy Council rulings governs this ease so as to preclude the judgment-debtor from contesting the validity of the auction-sale.
13. Dealing now with the fourth question in the case, I have already said that in delivering my judgment in Jasoda v. Mathura Das, L. R., 3 I. A., 230, I was inclined to hold that a 'material' irregularity, as distinguished from a simple irregularity, would vitiate a sale without proof of 'substantial injury' within the meaning of the second paragraph of Section 311 of the Code. The learned Pandit has argued that this view is opposed' to the dicta of the Lords of the Privy Council in Girdhari Singh v. Hardeo Narain Singh I. L. R., 9 Cal., 656, and in Macnaghten v. Mahabir Pershad Singh I. L. R., 9 All., 511, and I confess that there may be much force in this contention. But it is not necessary in this case to go further into the matter, because, as I have already shown, the effect of the Full Bench ruling in Mahadeo Dubey v. Bhola Nath Dichit I. L. R., 5 All., 86, requires that in this case the sale of the 1st February 1887, must be held to be void for want of a valid attachment.
14. This view renders the decision of the fifth point in the case unnecessary, because the absence of attachment is in itself sufficient to set aside the sale without any inquiry as to substantial injury being sustained by the judgment-debtor. For these reasons I would decree this appeal, and, reversing the order of the Lower Appellate Court, set aside the auction-sale of the 1st February 1887, with costs in both Courts.
15. I concur. Appeal decreed.