Govinda Menon, J.
1. The appellant before us is the defendant in the court of the first instance, in a suit for redemption of a mortgage on the plaint-mentioned properties, which was dismissed by the trial court but decreed in appeal by the learned District Judge. Objecting to that redemption decree, the present appeal has been preferred. The plaintiff claimed to be the assignee from an auction-purchaser of the property in question under a sale certificate, Ex. A. 3, dated 12-6-1934 issued in favour of his assignor and on the death of the plaintiff pending the appeal in the lower appellate court his legal representatives who are the contesting respondents before us have been brought on record. The defendant claims title to the properties through his predecessor-in-title under a sale, Ex. B. 1, dated 4-12-1929 and the sole point for consideration in this second appeal is as to which of the sales ought to prevail.
2. A few facts may be stated in order that the proposition of law may properly be understood. The plaint-mentioned property originally belonged to one Ananthachar who had mortgaged the same along with other items for a sum of Rs. 30,000 on 15-10-1910 in favour of one C. V. Narayana Rao. On 13-12-1920 under Ex. A. 1 the mortgagor executed a usufructuary mortgage in favour of one. Sri M.S. Ramaswami Iyengar for a sum of Rs, 20,000 directing him to pay the amount to the previous mortgagee. By sale of a part of the mortgaged property to the second mortgagee himself on 20-7-1925, Rs. 14,000 were paid towards the usufructuary mortgage and for the balance of Rs. 6000 the suit property was sold to the mortgagee. See Ex. A. 2 dated 20-7-1925. The previous mortgagee, Narayana Rao, executed a release deed in favour of Ramaswami Iyengar Ex. A. 2(a) on 15-12-1927. The result was that the mortgage of 15-10-1910 ceased to be subsisting on the property and it there had been no other complication, Ramaswami Iyengar would have become the owner of the suit property. The western portion of the properly of an area of 21 cents was sold by Ramaswami Iyengar on 11-7-1928 to one Parvathi Ammal and the eastern portion was sold to the defendant's predecessor-in-title on 4-12-1929 under Ex. B. 1. As the assignee of the rights under Ex. B. 1, the defendant claims the property.
3. Before the properly was sold to Ramaswami Iyengar, O. S. No. 78 of 1922 on the file of the court of the District Munsif of Coimbtore had been filed by one Nalla Karuppan Chettiar against Anantachar and others for recovery of a sum of money and on 27-3-1922 a decree was passed against . Anantachar and others in that suit. The decree amount with interest and costs as on 5-7-1922 came to Rs. 561-8-0. E. P. R. No. 1019 of 1922 in O. S. No. 78 of 1922 was an execution application by the decree-holder for the realisation of the decree amount and the prayer was that the plaint schedule property should be attached and sold. See Ex. B. 5. On 7-7-1922 the District Munsif ordered attachment by 19-7-1922. It is seen from the further endorsements on that execution application that the property was attached and further steps were ordered to be taken by 14-8-1922. See the endorsement dated 29-7-1922. Thereafter various proceedings and steps were taken in pursuance of the attachment, such as payment of batta, affixing of sale notice etc.
On 30-10-1922 proclamation was settled and it was ordered that the sale should take place on 8-1-1923 and the petition was adjourned to 11-1-1923 from which date it was again adjourned to 12-3-1923 for sale. The hearing of the petition was also adjourned to 16-3-1923. See the order of the District Munsif dated 27-1-1923. On 16-3-1923 there is the following endorsement on the execution application: 'Not sold for want of bidders. Closed.' Initialled, District Munsif, 16-3-1923. It is the interpretation of this endorsement that is the point in dispute. Nothing seems to have been done thereafter for more than ten years in pursuance of, this attachment and on 11-11-1933 the decree-holder filed E. P. C. No. 239 of 1934 praying that the decree amount may be realised by directing sale of the properties set out in the schedule to that application which were attached under Order 21 Rule 64, Civil P. C., in E. P. No. 1019 of 1922. Vide Ex. B. 2. Columns 1 to 5 of this petition give various details which are usually found in an execution petition and against column 6 there is the recital of the previous applications, the first of which is to the following effect: (1) 5-7-1922 E. P. R. No. 1019 of 1922, the properties were attached and brought to auction sale and as there was nobody to bid, it was rejected.
Further details are given as regards later applications, E. P. R. No. 172 of 1925, E. P. R. No. 1433 of 1925 dated 21-7-1925, E. P. No. 153 of 1926 dated 25-1-1926 and so on and so forth and the last of them was E. P. R. No. 32 of 1932 dated 20-8-1932 and it is stated that the petition was filed and returned but was not represented. Excepting the first application the rest of them did not deal with the sale of immoveable properties but were all either for the arrest of t judgment-debtor or for transfer of the decree to the court of Small Causes, Madras, and to the District Munsif's Court, Kallakurichi for execution. When the execution application was returned for the purpose of complying with certain returns there a further endorsement to the following effect:
'E. P. No. 630 of 1929 was dismissed on 25-9-1929 and a fresh E. P. for arrest of D-2 was granted on 20-6-1932 and returned for some mistakes being remedied. The attachment in E. P. R. No. 1019 of 1922 is still in force as that execution petition was disposed of only for statistical purposes. Hence this petition is not barred in any case. Hence this petition is granted for sale of the properties attached in E. P. R. No. 1019 of 1922.'
On this execution application the plaint property was put up for sale on the assumption that the attachment in E. P. No. 1019 of 1922 was still subsisting. Ex. B. 3, dated 16-4-1934 is a certified copy of the bidders' list prepared at the time the sale took place in pursuance of E. P. R. No. 239 of 1933. Item No. 2 related to the sale of the suit property and it is seen that it was knocked down to one Balakrishna Iyer for a sum of Rs. 106. Ex. A. 3 is the court sale certificate issued in pursuance of this auction to Rajammal, wife of the bidder Balakrishna Iyer. The document recites as follows:
'This is to certify that P.S. Balakrishna Iyer, husband of Rajammal mentioned above, on her behalf, has been declared the purchaser of the property, set out at a sale by public auction held on 16-4-1934, in execution of the decree in this court and that the sale has been duly confirmed by this Court.''
Therefore the sale certificate was issued in favour of the plaintiff's predecessor in title, Rajammal and how it came to be issued in her name is spoken 3 by P. W. 1 Balakrishna Iyer who deposed that the bid at the auction on behalf of his wife and on his application the sale certificate was issued in her (sic).
After the purchase and the issue of the sale certificate in her name Rajammal applied for delivery of possession but the defendant obstructed. C.M.P. No. 2445 of 1935 was filed for removal of obstruction and that was dismissed. Rajammal thereafter filed O. S. No. 772 of 1937 on the file of the District Munsif's Court, Coimbatore, for setting aside the order in C. M. P. No. 2445 of 1935. It was held in that suit that the court auction purchaser Rajammal had title to the properties subject to her redeeming the earlier mortgages binding on the properties but the suit for possession was dismissed. The result was that if the sale in favour of Ramaswami Iyengar was not valid, then there would be subsisting the usufructuary mortgage for Rs. 6000 on this property as well as on the 21 cents of land lying to the west of it which was purchased by Parvathi Ammal whose rights have now devolved upon Rajammal. Therefore the proportionate mortgage amount charged on the suit property would be Rs. 3350 and it is for the redemption of the property on payment of the said sum that the present suit has been filed.
4. The contention of the defendant was that since the person who bid at the sale was Balakrishna Iyer, the husband of Rajammal, the sale certificate should have been issued in the name of Balakrishna Iyer but without adopting that course the sale certificate had been issued in the name of Rajammal and as such it is invalid and does not convey any title to Rajammal and 'a fortiori' to the plaintiff. It is further urged that the order in E. P. No. 1019 of 1922 to the effect that for want of bidders the property was not sold and therefore closed amountedto a dismissal of that execution petition which resulted in the raising of the attachment and such beingthe case at the time of filing E. P. R. No. 239 of 1933there was no subsisting attachment on the suit property and therefore, the sale in pursuance of E. P.No. 239 of 1933 did not convey any title to thepurchaser since the property on which noattachment had been subsisting had beensold. The third argument was that even if atthe time of the dosing of E. P. No. 1019 of 1922the attachment was intended to be continued stillby the fact that the decree-holder took various stepsduring the course of the next ten years for transferring the decree to other courts and for arrest ofthe judgment-debtor such action would be tantamount to the abandonment of the attachment evenif it had been subsisting and therefore at the timeof the filing of E. P. No. 239 of 1933 no attachmentsubsisted.
The trial court found that the sale certificate is sued to Rajammal was without jurisdiction as it was not shown that Balkrishna Aiyar bid at the auction as the agent of Rajammal and hence Rajammal did not get any right to the property under the purchase in the court sale. It also found that the attachment effected in E. P. No. 1019 of 1922 did not subsist on the date when E. P. No. 239 of 1933 was filed. The result was that the court sale held on 16-4-1934 on the assumption that the attachment was subsisting did not amount to a valid sale. On these grounds, the suit was dismissed. The learned District Judge took a contrary view on both the points and decreed the redemption of the property. Hence this second appeal.
5. Mr. R. Gopalaswami Aiyangar, learned counsel for the appellant, raised the three points set out by us while stating the contentions of the defendant. His first argument was that the sale certificate (lid not confer any title on Rajammal and that being the case the assignment in favour of the plaintiff was void and inoperative. From Ex. B. 3 the bidders' list it does not appear that Balakrishna Iyer bid at the auction either in his capacity as an advocate appearing for any party or as the agent of his wife. The entry is to this effect: 'Knocked down to P.S. Balakrishna Iyer son of Sundaram Iyer; Advocate, Coimbatore, for Rs. 106'. The evidence of Balakrishna Iyer in examination-in-chief as P. W. 1 is to the effect that he bid at the auction on behalf of his wife, Rajammal, and in Cross-examination he states that he held no power of attorney from his wife and that it was only when he bid for the second time before the conclusion of the sale that he informed the Nazir that he was bidding on his wife's behalf whereupon the Nazir said that he could not do anything and asked him to represent to the court.
Thereafter, an application was made to the court for the issue of the sale certificate in the name of his wife and accordingly the sale certificate Ex. A. 3 mentioned that the bidding was by Balakrishna Iyer on behalf of Ms wife. Mr. Gopalaswami Iyengar contends that since the actual bidder was Balakrishna Iyer & not his wife and since no power of attorney or vakalat had been filed by Balakrishna Iyer on behalf of his wife it should he taken that the bidder was really Balakrishna Iyer in his own capacity & not as anybody's agent. The lower appellate court has accepted the evidence of Balakrishna Iyer that he bid at the auction on behalf of his wife and the court which issued the sale certificate was also satisfied that the real purchaser was Rajammal. Even so, it is argued by Mr. Gopalasawmi Iyengar that the sale certificate can be issued only in the name of a person who actually bids at the auction and that no kind of benami status can be recognised in such court sales. Order 21 Rule 94 relating to issue of sale certificate to a purchaser states as follows: Where a sale of immovable property has become absolute, the court shall grant a certificate specifying the property sold and the name of the person who . at the time of sale is declared to be the purchaser.
From this, it is argued that since the bidders' list shows Balakrishna Iyer as the person who was declared to be the purchaser at the time of the sale, no certificate could have been issued in the name of his wife, Rajammal, even if Balakrishna Iyer had bid at the auction as the agent of Rajammal. The contention is put forward that if Rajammal should get valid (title?) to the property purchased by her at the court auction the bidders list should show that Balakrishna Iyer bid at the auction on behalf of his wife and in the absence of any such entry, it must be taken that the bidding was by Balakrishna Iyer for himself. We are unable to accept this contention. The lower appellate court has not rejected the evidence of P. W. 1 Balakrishna Iyer to the effect that when he bid for the second time he informed the Nazir that he was bidding on behalf of his wife. We are prepared to accept the evidence of P. W. 1 that at the time he bid, his function was to act as the agent of his wife despite the fact that no power of attorney of vakalat was filed by him asking for permission to bid at the auction on behalf of his wife. In the light of the evidence of P. W. 1 we are prepared to interpret the entry in the bidders' list on the footing that Balakrishna Iyer bid on behalf of his wife and that the property was knocked down to him for Rs. 106 as the agent of his wife.
6. Such being the case, Rajammal must be deemed to be the person who at the time of the sale was declared to he purchaser.
7. Our attention was invited to a decision of the Allahabad High Court in -- 'Makhanlal v. Baldeo Prasad : AIR1938All471 laying down that having regard to the provisions of Rule 94 of Order 21, C. P. C. the court should issue the sale certificate only in the name of the auction purchaser or if he dies in the name of his legal representative. But the Court is incompetent to recognise any transfer or arrangement made by the auction purchaser with a third person. That was a case where subsequent to the knocking down in the name of one Kunj Behari Lal, he sold the property to another and the sale certificate was sought to be issued in the name of assignee. The view taken by Rachhpal Singh J. was that it cannot be issued in the name of a person -other than the purchaser.
8. A contrary view has been taken in the decision in -- 'Ganpati v. Subraya : AIR1936Bom137 (B), in which case Broomfield J. was of the opinion that when Order 21, Rule 94, Civil P. C. does not state that the person who at the time of the sale is declared to be the purchaser should alone be granted the sale certificate it can be issued to a representative of the purchaser in accordance with the provisions of Section 146, Civil P. C. and that therefore, there is nothing whatever to prevent an assignee from the auction purchaser applying for the issue of the sale certificate nor to prevent the court granting it to him. In our opinion the more acceptable view seems to be that of Broomfield J. That the Allahabad High Court has not accepted the view of Rachhpal Singh J. in : AIR1938All471 is evident from a later decision in -- 'Pokhpal Singh v. Kanhaya Lal : AIR1946All438 , where a pencil held that if the sale certificate had been issued in the name of a person who has been declared to be the purchaser even though somebody had bid at the time of the auction, it is only an irregularity which would not vitiate the whole proceedings.
In that case at the time the sale took place the property was knocked down to one Benarsi Das a he was the successful bidder but he made a statement at the time of his bidding that he was doing so not on his own account but on behalf of the decree-holder. The sale certificate was, therefore issued in the name of the person on whose behalf Banarse Das bid and when the validity of the said certificate was questioned Yorke J. who delivered the judgment of the Bench held that the order directing issue of a sale certificate in favour of the decree holder might have been questioned by means appropriate proceedings and that not having been done at the most it was an irregularity which Cannot be Questioned at the time when the sale certificate was sought to be executed. The court was not prepared to accept the technical plea. The rest is that the purchaser in whose name the sale certificate has been issued cannot be deprived of right to obtain possession of the property purchase by him even though the order passed by the Sale Officer might be irregular.
There is a close resemblance between the fact of the case of the Allahabad High Court and the instant one. Even in the present case, Balakrishna Iyer at the time of his bidding told the Nazir who conducted the sale that he was bidding as the (SIC) of his wife and the sale certificate was issued by the court on that representation in the name of his wife, Rajammal. We are inclined to agree with the observations contained in the decision in : AIR1946All438 and therefore the first contention of Mr. Gopalaswami Iyengar in our opinion, is bereft of any substance.
9. We now come to the second contention namely, that at the time E. P. No. 239 of 1933 was filed the attachment effected in E. P. No. 1019 (SIC) 1922 as per the order passed by the District Munsif on 17-6-1923 was not in existence. Learned counsel for the appellant argues that when the District Munsif closed the petition on the ground, that the properties were not sold on account of absence of bidders, he must be deemed to have finally dispose of that application in which case the attachment effected already, must also cease to have any effect. What is urged is that we ought to read the expression 'closed' as meaning dismissed or disposed of finally. From very early times a large crop of case law has sprung up on the interpretation of the words such as 'closed, struck off, rejected etc', when dealing with execution applications. This court has on more than one occasion held that such disposals should be deemed to be only for statistical purposes and they do not amount to any final adjudication of the points in controversy. Learned counsel for the appellant referred to the observations of Vardachariar J. in -- 'Somasundaram Chettiar v. Alamelu Achi', 1937 MWN 480 (D), which are to the following effect:
'The legal result of orders importing 'rejection, striking off, closing, recording and even dismissal' has to be ascertained with reference to the attendant circumstances and not merely from the form of the order.'
In this connection, a large body of case law has been referred to by the learned Judge. It is unnecessary for us to discuss elaborately the long catena of cases on this topic, as, in our opinion, it is not the expression used in the order that concludes the matter but it is the effect of the action of the court. When on 16-3-1923 the District Munsif passed orders closing the petition as the sale could not take place for want of bidders, are we to understand that the District Munsif had dismissed the application, disposed of the matter finally and given a quietus to the relief claimed by the decree-holder? It will be seen from the earlier orders that the sale could not take place on 8-1-1923 (SIC) the court was closed on account of the fact that plague was prevalent in the town. Again there was an order for sale on 12-3-1923, Obviously the reason for the absence of bidders for sale fixed to take place on 16-3-1923 was the prevalence of (SIC)gue in the town and the consequent aversion of the villagers to proceed to the town and bid at the action. It is difficult in these circumstances to say that the court intended that the application should is dismissed. By that time the court should have (SIC) fully aware of the meaning attributed in the decisions of the High Court to such expressions as closed, struck off', consigned to the records etc.,'
(SIC) in most of the cases the view taken by the High Courts that such disposals if they can be named (SIC) such, are only for statistical purposes and not (SIC) the object of putting an end to the application.
10. The next decision relied on by the learned Counsel for the appellant is the judgment of Wadsworth J. in -- 'Unnamalai Ammal v. Baghyathammal : AIR1940Mad763 , but we do not think that there is any dictum in that judgment which can be availed of by the learned counsel for the appellant in support of his contention. Wadsworth J. as dealing with the interpretation of an order couched in the following terms: 'Decree-holder dead. Petition dismissed'. The learned Judge was of the opinion that when a petition is dismissed it has the effect of raising the attachment mid thereafter no further attachment subsisted. In the circumstances of that case and especially in view of the expression used, namely, 'dismissed' there can be no justification for imagining that the attachment would thereafter subsist. In this connection we teed only refer to a passage in the judgment of Jackson and Butler JJ. in -- 'Periannan Chettiar (SIC) Lakshmanan Chettiar AIR 1935 Mad 212 (F), where the Bench had to consider the effect of similar expressions used in passing orders on an execution petition. The facts of that case show that (SIC) an execution application after the attachment was effected there was an endorsement on the petition, 'closed'.
It was argued that what the court intended by that order was that the petition had been dismissed in account of the failure to pay batta. In refuting this argument the learned Judge (Jackson J.) observed as follows at page 212:
'By this date (1921) the distinction between closed' and 'dismissed' is well known and it cannot be argued that a petition which is closed has been dismissed so as to attract the mischief of Order 21, Rule 57, Civil P. C.'
The learned Judge, therefore, held that the attachment was still subsisting. It seems to us that the observations of the learned Judge aptly apply to the present case. As we have already remarked, there is no data from which it can be inferred that the court intended to pass final orders on the petition when it used the expression 'closed'. Such being the case, it cannot be held that the court intended to put an end to the attachment that had already been subsisting. The same should be deemed to be subsisting even after such an order had been passed.
11. Failing on these two points the learned counsel for the appellant urged that even if the attachment was subsisting after 16-3-1923 still the conduct of the decree-holder subsequent to that order would show that he had abandoned the attachment so that it must be deemed that the attachment had been wiped of or effaced. We are not quite clear how a party by his act can abandon the attachment subsisting on a property. It is by an act of the court resulting from an order passed that the attachment is effected and how a party by his own volition can put an end to an' attachment by abandoning it, has not been clearly explained. Mr. Gopalaswami Aiyangar relied upon a sentence in the judgment of Satyanarayana Rao J. in -- 'Venkatarao v. Suryarao', : AIR1950Mad2 (C), where the learned Judge observed as follows:
'An attachment, it has to be mentioned, does not otherwise cease unless there was a satisfaction or adjustment of a decree or sale of the property or a decree was set aside or attachment was withdrawn or abandoned and in the case of attachment before judgment the suit was dismissed.'
Because the learned Judge has used the expression that the attachment does not cease unless it is put an end to in one of the ways and of which abandoning is one, we are asked to say that it is possible for a party to extinguish it by means of abandoning it,
The various modes under which an attachment can cease to have effect have been enumerated by the learned Judge and the antithesis between withdrawal of attachment and abandonment shows that the abandonment of an attachment cannot be by the mere act of parties. The actual decision of the case shows that for the determination of the attachment not covered by Order 21, Rule 57, Civil P. C. the order of the Court would be ordinarily necessary and the omission to state whether the attachment continues or ceases would probably result in the continuance of the attachment. We do not read the observations of the learned Judge as laying down that a party can abandon an attachment validly imposed upon a property by the orders of the court. A petition can be abandoned but not an act of the court like the attachment.
12. It was then urged that the first item in Col. 6 of E. P. No. 239 of 1933, Ex. B. 2, stated that the properties were attached and brought to auction sale and as there was nobody to bid, it (E. P. No, 1019 of 1922) was rejected and because the word 'rejected' was used, the decree-holder was conscious of the non-existence of the attachment at the time, he filed E. P. No. 239 of 1933 on 11-11-1933. Mr. Desikan, for the respondents pointed out that though the word used in Column 6 was 'rejected' when dealing with the mode in which the assistance of the court was required in Col. 10, there is a specific mention of the existence of the attachment in E. V. No. 1019 of 1922 for it is prayed that the properties which were attached under Order 21, Rule 64, C. P. C. in E. P. No. 1019 of 1922 should be sold and the amount realised. It is also relevant to note that after the execution petition was returned, there was a further endorsement that the attachment in E. P. No. 1019 of 1922 was still in force as that execution petition was disposed of only for statistical purposes. Hence it cannot successfully be contended that when the decree-holder filed E. P. No. 239 of 1933 he was conscious of the non-existence of the attachment already subsisting. On the other hand, various averments contained in Ex. B. 3 prove the contrary.
13. A number of cases were cited before us to show that under certain circumstances the court is entitled to infer that the attachment ha ceased to exist as a result of the inaction of the decree-holder during a course of time and that from such conduct it could be concluded that there could be no attachment in existence. A very early case reported in 'Puddomonee Dosseo v. Row Muthooranath Choudry', 20 Suth WR 133 (II) was cited.
14. In that case the Privy Council held that the striking of an execution petition is an act which may admit of different interpretations according to the circumstances but when a very long time has elapsed between the original execution and the date at which it was struck off, it should be presumed that the execution was abandoned and ceased to be operative unless the circumstances are otherwise explained. It is seen from that report that a very long time had elapsed between the filing of the original execution and the date on which it was struck off and, therefore, their Lordships presumed that the striking off was due to the inaction or negligence of the party. It means that he had abandoned the execution petition itself. Nowhere do their Lordships say that the attachment as such can be abandoned or has been abandoned. All that can be gathered from the observations of their Lordships is, that if a party is not diligent but on the other hand is dilatory and negligent in prosecuting the execution petition which after a long lapse of time is struck off the inference is that the same has been abandoned by him. .
The facts of the case show that the attachment was effected in 1832 and the execution petition was struck off in 1844 and there is nothing to show that any proceedings were taken during the intervening period and it is also evident that in 1840 a fresh attachment was effected. In these circumstances there can be no doubt whatever, that the earlier execution petition itself has been abandoned by the party. A later case in -- 'Mst. Goonjessur Koonwar v. Lachmee Narain Singh', 20 Suth WR 418 (1), refers to this judgment of the Judicial Committee and lays down
'Where an attachment more than nine years old, made in execution of a decree more than 12 years old was pleaded as an injunction operative under the Civil Procedure Code, the court held themselves bound to assume in the absence of other information that the attachment had been removed and the execution proceedings had all come to an end.' Here again for 9 years there was absolute inaction and from the facts of the case it was legitimate to assume that the execution proceedings had come to an end.
15. Sir John Wallis, Kt C. J. referred to the judgment of the Judicial Committee in 20 Sum WR 133 (H) adverted to above in -- 'Chamiappa Tharagan v. Rama Iyer', AIR 1921 Mad 30 (J), and held that the facts of that case before him raised a presumption that the attachment was abandoned. It is seen that the attachment was effected by the court to which the decree and had been transferred for execution and after sometime the petition was struck off and the decree was sent back to the court which passed it. From these circumstances, the learned Chief Justice presumed that the attachment was abandoned. It is not clear how there can be an abandonment. But the actual decision had turned upon some other point. We arc not able to see how this observation can help the case of the appellant.
Great reliance was placed by Mr. Gopalaswami Iyengar on a decision of the Privy Council in --'Maharaja Bahadur Singh v. A.H. Forbes, AIR 1929 PC 209 (K), where there are observations at pages 211 and 212. Because of the fact that between the first application in which the attachment was effected, and the final one which came up for decision there had been a number of intervening applications for attachment which were different in nature and character from the initial one, their Lordships held that the reliefs claimed under the earliest application must be deemed to have been given up. It is clear, as their Lordships have stated, that three intervening applications essentially different in character from the first of 1908 had been filed and, therefore, they presumed that the decree-holder must be deemed to have abandoned the first application.
16. Here also, it is a case of an abandonment of the petition filed in the court and not of an abstract thing as the attachment. It was further held that the combined effect of the intervening applications was that a substantial departure from the original application had been made so as to make it impossible to hold that the last application was a continuation of the initial one. The nest case relief on by the learned counsel for the appellant is the judgment of Govindarajachari J. in -- 'Venkatlakshminarasimham v. She Ven Vaktaji Gomaji and Co. AIR 1949 Mad 363 (L). Here also the teamed judge was considering the abandonment of the application by the decree-holder in that he had not taken adequate steps in regard to his prayer for attachment and sale of the immovable property. In this case reference had been made to the decision of the Privy Council in AIR 1929 PC 209 (K), for concluding that where the intervening applications between the earliest and the latest execution applications are essentially different in character from the earliest one it is quite open to the court to infer to abandonment of that application and in any even the combined effect of the previous application marks such substantial departure from the original application that it cannot he said that the later application should be treated as a continuation of earlier one. The facts of that case show that the earlier application had 'been abandoned.
17. On behalf of the respondents two decisions have been brought to our notice, namely, --'Mahomedsha Khan Sahib v. Srinivaslu', 13 Mad LJ 221 (M) and -- 'Karuppan Chettiar v. Rajangam : AIR1940Mad172 . In the former case the decision was that where by way of caution, a decree-holder who has previously attached the property of his judgment-debtor asks for re-attachment, he does not thereby abandon or waive the original attachment especially where he refers to the prior attachment as subsisting and asks for re-attachment only if the court should deem it necessary. In the latter case Venkataramana Rao J. held that if owing to a mistake or ignorance of the legal rights the plaintiff obtained a fresh attachment when an earlier attachment is in force it would not terminate the attachment which was already subsisting.
18. In our view, the point decided in the case cited above may usefully be applied to the fact of the present case. That the decree-holder was conscious of the existence of the attachment already effected when he filed E. P. No. 239 of 1933 has already been considered by us. The only point is whether the intervening applications between E. P. No. 1019 of 1922 and E. P. No. 239 of 1933 are so different in nature and character as to compel the court to infer that the earliest application had been abandoned. The burden of proving that the application has been abandoned is on the defendant and he has not taken any steps to discharge that burden. No certified copy of any of the intervening applications has been produced before the court and we are not able to say whether those applications contained any reference to the existence of the attachment in E. P. No. 1019 of 1922. As Article 182 (5) of the Limitation Act then stood, the subsequent execution applications can be considered as steps in aid of execution only if it is filed within three years of the presentation of the earlier application and not as is now within three years of the passing of the final order on the earlier one. Therefore, we can safely presume that in E. P. No. 172 of 1925, and E. P. No. 1433 of 1925 reference must have been made to E. P. No. 1019 of 1922 and the orders thereon.
The subsequent petitions also should make reference to the earlier ones. We are not, therefore, justified in presuming from the intervening applications that the earlier application had been abandoned by the decree-holder. If that is so, in view of our conclusion that the attachment already effected was subsisting E. P. no. 239 of 1933 is a valid one by which the properties already attached on 29-7-1922 can be sold. Therefore, the sale in favour of the predecessor-in-title of the defendant cannot have precedence over the court sale in favour of Rajammal. In this view the decision of the learned District Judge is correct.
19. In the result the second appeal fails and is dismissed with costs.