Venkataramana Rao, J.
1. This second appeal arises out of a suit filed under Order 21, Rule 63, Civil Procedure Code, by the plaintiffs, for a declaration that they are entitled to sell the properties in suit in execution of a decree obtained by them in O.S. No. 371 of 1919 on the file of the District Munsif of Valangiman against the second defendant's father and that the deed of sale executed by the second defendant's mother as guardian dated 17th August, 1927, in favour of the first defendant is a sham and nominal transaction executed with a view to defeat and defraud their rights. The plaintiffs also attacked the deed on the ground that it was executed during the pendency of a subsisting attachment issued in execution of their decree. The sale deed in favour of the first defendant was for a sum of Rs. 8,000 part thereof, namely, Rs. 6,500 represented the amounj due under a mortgage in his favour dated 25th October, 1921, executed by the second defendant's father and the balance Rs. 1,500 represented in part the amount due under a promissory note dated 7th November, 1921, also executed in his favour by the second defendant's father. Both the lower Courts took the view that the alienation was not invalid on the ground that it was made during the pendency of a subsisting attachment, but they differed on the question whether the sale deed was executed in order to defraud the plaintiffs' rights. The learned District Munsif took the view that it was a sham and nominal transaction, but the learned Subordinate Judge held that it was a bona fide transaction intended to pass title.
2. This appeal is by the plaintiffs and Mr. Venkatarama Aiyaron their belialf urged before me two contentions, namely, (1) that the deed of sale is void having been executed during the pendency of a subsisting attachment and (2) that it was executed in order to defeat and defraud the plaintiffs' rights. If the first contention is answered in plaintiffs' favour, it would be unnecessary to go into the other. I therefore propose to deal with the first contention. A few facts are necessary to appreciate it. On the 16th September, 1923, plaintiffs filed an application (E.P. No. 559 of 1.923) and obtained an order for attachment of the suit properties. Then they obtained an order for sale and the date of the sale was fixed for 14th February, 1924, but later adjourned to 29th March, 1924. The second defendant filed a suit against his father Venkata Reddi for partition and in that suit he obtained an injunction for stay of execution of the said decree. The sale was accordingly not held and that fact was recorded in E.P. No. 559 of 1923. But the execution application was pending and no final orders were passed thereon. The suit filed by the second defendant was dismissed on the 9th November, 1925. After the dismissal of that suit, the plaintiffs filed an application E.P. No. 222 of 1928 wherein they prayed that the second defendant might be brought on record as the legal representative of his father Venkata Reddi who has since died and also that the properties already attached in E.P. No. 559 of 1923 and ordered to be sold might again be ordered to be sold without the necessity of a fresh attachment, but the application was dismissed for default on the 12th November, 1928. The plaintiffs then filed a third application (E.P. No. 320 of 1930) wherein they prayed that the immovable properties already mentioned in E.P. No. 559 of 1923 might again be attached and the property directed to be sold. They were accordingly attached and directed to be sold on 7th April, 1930. The first defendant preferred a claim petition and it was allowed. Hence this suit. It will be seen that the sale deed was executed on the 17th August, 1927, before the dismissal of E.P. No. 222 of 1928. It is conceded that on the date of the sale the attachment which was made in pursuance of the order made on E.P. No. 559 of 1923 was subsisting, but it is contended that by reason of the dismissal of the application (E.P. No. 222 of 1928), the attachment ceased and therefore the sale must be deemed to be valid. Both the lower Courts have taken this view and the question is, is it sound? The provision Ka of law bearing on this matter is Order 21, Rule 57, which runs thus:
Where any property has been attached in execution of a decree but by reason of the decree-holder's default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application the attachment shall cease.
3. It is clear from the language of the section that before a pending attachment shall cease, there must be a dismissal of the application for execution in which the attachment was effected. The expression used is 'upon the dismissal of such application.' There has been no final orders on E.P. No. 559 of 1923; it has never been dismissed. The question therefore is, can the dismissal of E.P. No. 222 of 1928 operate as a dismissal of the prior execution application? What was prayed in E.P. No. 222 of 1928 was to bring on record the legal representatives of the deceased defendant and to order a fresh sale,' but that application was dismissed. The dismissal of this application would not prevent the plaintiffs from making a fresh application and from renewing the same prayer. As long as E.P. No 559 of 1923 was pending, any order of dismissal on an interlocutory application in the pending execution petition would not terminate the attachment. It is contended that the procuring of a fresh attachment in E.P. No. 320 of 1930 would indicate clearly that the prior attachment was treated by the plaintiffs as not legally subsisting. If owing to a mistake or ignorance of legal rights, the plaintiffs obtained a fresh attachment it would not terminate the attachment which was already subsisting. The fresh attachment is a superfluity. I am therefore of the opinion that the sale must be treated as void and inoperative as against the attachment obtained by the plaintiffs in execution of their decree and which is still subsisting. The question is, what is the relief the plaintiffs will be entitled to? It will be seen that the sale in favour of the plaintiffs was executed in part discharge of a mortgage. The plaintiffs had impeached the said mortgage as fraudulent, but the lower apnellate Court has declared it to be a bona fide transaction and Mr. Venkatarama Aiyar has not challenged the finding in respect thereof. The plaintiffs will only be entitled to bring the properties to sale subject to the said mortgage in favour of the first defendant. It is open to the first defendant, if he desired, to have the property sold free from encumbrances and have the amount due on the mortgage paid out to him leaving the plaintiffs to realise their amount from and out of the surplus.
4. The result is that the decree of the lower appellate Court must be set aside and the plaintiffs be declared entitled to bring the suit properties to sale subject to the mortgage, in favour of the first defendant and the decree of the District Munsif restored with costs throughout.
5. Leave to appeal is refused.