1. Second and 3rd plaintiffs, appellants, are here to contend that the lower Appellate Court erred in holding that Exhibit C, was executed during the pendency of an attachment, effected by a decree-holder, now represented by the 6th defendant. The Lower Appellate Court no doubt was right in holding that the attachment under Exhibit I was not terminated by the dismissal, with which the proceedings closed. It is only necessary to say with regard to that conclusion that it might have been reached more shortly, because the default of the decree-holder referred to in Order 21, Rule 57, cannot, in our opinion, be constituted either by his absence from the sale or his failure to bid at the sale, but must be a default in the discharge of some obligation laid on him by the Code or the Rules framed under it.
2. Having reached that conclusion, however, the lower appellate Court did not go on to consider the result of the subsequent proceedings in Exhibit II. Exhibit II was another application for attachment, which was dismissed on 20-7-1914, because the decree-holder failed to produce the schedules called for. A day before that dismissal Exhibit C had been executed, it is urged, during the pendency of an attachment. The plaintiff's contention is that the attachment under Exhibit I was terminated by the order of dismissal of 20-7-1914 and that Ex. C executed the day before that dismissal would become effective, when the attachment came to an end. In this connection reliance has been placed on the reference in Section 64, C.P.C., to a transfer made pending an attachment, as void, as against all claims enforceable under the attachment, the argument being that, when the attachment ceases and there are no longer any claims enforceable under it, there is no reason why the transfer should not be regarded as valid. On the question raised in connection with the proceedings evidenced by Ex. II the lower appellate Court has expressed no opinion.
3. We must accordingly call on it for a revised finding on the question whether Ex. C is void because of the order of dismissal included in Ex. II. The lower appellate Court's finding must be returned within six weeks; and seven days for objection. It will on the return of the finding be open to the respondents to argue the question raised by Issue 7 it the trial.
4. S. A. No. 2128 of 1920 will stand adjourned pending returns of the finding in S.A. No. 2127 of 1920.
[In compliance with the order contained in the above Judgment, the District Judge of South Malabar submitted the finding that Ex. C was void]
5. The appellants, 2nd and 3rd plaintiffs, sued for redemption on two documents Exhibits C and D. The defence at present material was that Exhibits C and D were taken during the currency of an attachment of the property by the 5th defendant, contesting respondent here, who has since become the owner of that property by purchase from the purchaser at the Court sale, which subsequently took place. Before the remand we decided that the 5th defendant's attachment was subsisting notwithstanding the dismissal of the 5th defendant's execution-petition on the 22-4-1914. We have now to deal with the lower appellate Court's finding on remand, that the attachment was not terminated by the order of dismissal on a subsequent execution-petition, passed on 20-7-1914-The importance of that is that, if there was such a termination of the attachment, Exhibits C and D (it is not disputed) would, so soon as there was no attachment and no obstacle to their doing so, become binding on the property.
6. We agree with the lower appellate Court's conclusion but not for the reasons it has given. For it held that there was no default by the decree-holder, 5th defendant, such as Order 21, Rule 57 contemplates, on the assumption that the failure to produce schedules on account of which the execution-petition was dismissed, was a failure to produce schedules for the purpose of framing the sale proclamation and that it therefore was not a failure to comply with any order, which the executing Court was entitled or bound to make. That assumption was untenable. For it is clear from the record that everyone, the decree-holder and the Court, mistakenly thought that the previous attachment had been raised and that the stage, at which schedules were necessary for framing the proclamation had not been reached. That is clear from the order on execution-petition, Ex. II. There is first the order after its receipt, being that of 11-7-1914. 'Pay batta for attachment,' and next that of 14-7-1914 'Batta paid, produce Schedules.' There is no reference to any return of the warrant of attachment; and there is no doubt that attachment was thought necessary and so process had been filed and that no attachment had been completed. There was so far no question of the further stage of framing proclamation. Whether, if that stage had been reached, noncompliance with the Court's order to produce schedule would have been a default within the meaning of Rule 57 need not be decided. It is clear that the Lower Appellate Court has neglected the material evidence on this matter and that we must proceed on the footing that the schedules were required for the making of an attachment, such schedules being required for the affixture in various places and for the making of the proclamation by beat of tom-tom under Rule 54(2). An attempt has been made on bealf of the 5th defendant to contend that failure to produce them was not a default within the meaning of Rule 57 and the order of dismissal was therefore not passed under that rule. As we are deciding the case on another and wider ground, we need not pursue that. For we cannot accept the contention, because we think that either under the Code or in the exercise of its inherent power to make orders necessary for the prosecution of the petition before it the Court had power to require such schedules to be produced.
7. The wider ground, on which we decide the petition, is that even so the order cannot in the circumstances be regarded as having been made under Rule 57. It is true that the conditions specified in Rule 57 are at first sight satisfied. The Court was unable to proceed further with the application for execution. There was default by the decree-holder. The property had been attached in execution of a decree. But that does not entail that the section has in substance been complied with. No doubt the first six words of the section 'Where any property has been attached' are literally satisfied in the present case. But, we are not prepared to hold that such literal satisfaction is sufficient. It seems to us that the section as a whole is applicable only to cases, in which the stage of attachment has been passed and in which the Court is conscious that the next stage is intended and is not applicable to an abnormal case, such as that before us, where no one concerned, neither the party nor the Court was conscious of the true facts and where, if there was in fact an attachment, the party and the Court were not aware of it and were proceeding as though there were none. That is clear from the nature of the procedure enjoined on the Court. Two courses are open to it, either to dismiss the application with the implication that the attachment ceased to exist, in which case what may be described as a quasi penal consequence shall be assumed or for any sufficient reason to adjourn the proceedings to a future date. It would be contrary to all principle that the Court should be supposed to be making its choice between the two alternatives, one of which results in the imposition of a penalty when it is not aware of the true facts. The order in respect of which default is contemplated, must clearly be one, which could be made after attachment, not one, as here, appropriate only before it. Taking this view, we hold that Order 21, Rule 57 was not applicable to the present case or to the order of dismissal now under consideration at all.
8. Reliance is then placed on behalf of the plaintiffs on the fact that the order of dismissal was never set aside on appeal or in the alternative that the decree-holder by applying again for attachment must be taken to have abandoned or waived the attachment already made and still subsisting. As regards the absence of appeal we observe that the question whether an order was really passed under Rule 57 and whether it has the implication referred to in the last sentence of that rule is in our experience always a difficult one, and it is perhaps to be desired that the rule should impose an obligation on the Court to express that implication clearly, so as to include in its disposal a clear expression of that implication, when it intends it. The difficulty is that the character of the order, which is made in many cases in the absence of the judgment-debtor, is not in controversy until after time has elapsed and it is necessary in some future proceedings to determine its effect. The argument before us however can be dealt with shortly. For after our conclusion that the order of dismissal was not passed under Rule 57 at all, it is immaterial that there was no appeal; for an appeal could have secured no purpose, when the order in question had not any effect on the previous attachment, which it was necessary to displace. As regards waiver, the answer is equally simple. For it is a general principle that there can he no waiver in ignorance of the existence of the rights alleged to have been waived.
9. Taking this view, we accept the finding and hold that the first attachment was never determined and that therefore Exhibits C and D, made during the attachment which never ceased have never become effective.
10. This failing the appeal has been argued on another ground that Exhibit O, the order on a claim petition by these plaintiffs sustained Exhibit D to the extent of Rs. 630 actually secured by it and that therefore the plaintiffs should have had a decree to obtain possession on payment of Rs. 630. This argument was taken very obscurely, if at all, in the grounds of appeal in this Court. It can be dealt with very shortly. First The right to obtain possession was conferred by the melkanom. Exhibit C and not by the panayam deed, Ex. D, which entitled the plaintiffs only to retain possession of the property as security for their money, after possession had been obtained under Ex. C. Next Ex. O did not sustain Ex. D, as a mortgage with possession, which could be redeemed, but only directed the plaintiffs that the property should be sold subject to a charge under that document for Rs. 630. The plaintiffs cannot claim any different or further relief on Ex. D, than Ex. O allowed them.
11. The result is that S.A. No. 2127 of 1920 fails and is dismissed with costs of 5th respondent (6th defendant). S.A. No. 2128 of 1920 must be decided on the same grounds and it is also dismissed with costs of 1st respondent, plaintiff.