1. The respondent, having attached the appellant's immoveable properties before judgment, obtained a decree for Rs. 2,224-12-0 against him and his mother on 28th January, 1919. Afterwards he applied through E.P. No, 35 of 1924 for sale of the properties which were attached before judgment. In the interval two petitions for executing the same decree had been rejected owing to the execution-petitioner's fault. The appellant filed C. M.P. No. 722 of 1924 on 18th November, 1924, asking (1) that the auction sale fixed for 24th November, 1924 should be stopped, (2) that the whole proceedings in the pending E.P.R. No. 35 should be vacated, and (3) that E. P R. No. 35 should be dismissed. The Subordinate Judge of Coimbatore refused these reliefs and dismissed the Civil Miscellaneous Petition. From that order the appellant has filed an appeal and a revision petition to the Fligh Court on 2nd March, 1925. The sale took place on 9th February, 1925, and awaits the Lower Court's order of confirmation under Order 21, Rule 92, Civil Procedure Code. The appellant's vakil contends that the attachment of the property ceased by virtue of Order 21, Rule 57 upon the dismissal for default of the prior execution petitions, the attachment before judgment being good only until the first execution petition after the passing of the decree was dismissed [vide Meyyappa Chettiar v. Chidambaram Chettiar (1923) 46 M.L.J. 415 and that the sale of property without a previous subsisting attachment was illegal.
2. In my opinion there is a short answer to this appeal and the accompanying revision petition. The sale having already taken place, the judgment-debtor's remedy lies in applying under Rule 90 of Order 21 to have it set aside, and from the order to be passed by the executing Court he will have the right of appeal to this Court under Order 43, Rule 1(j), Civil Procedure Code.
3. It is too late to stop the sale after it has taken place, and at the same time it would be premature on the part of this Court to set aside the sale, the power to do so being vested in the first instance in the executing Court. The appellant did not obtain an order from the High Court to stay the sale before it was concluded. We should not make a declaration or pronouncement of opinion as to the validity of a sale while an order confirming or setting it aside is pending in the Court below, and there is no room for our interfering otherwise with the course of the execution petition which will be finally disposed of only when final orders arepassed under Rule 92 and when it is known to what extent the decree has been satisfied. The fact that there is no right of appeal provided in the Coda of Civil Procedure against orders under Order 21, Rules 64 and 66 for sale of property indicates that such orders are of an interlocutory nature. The appealability of an order for sale was raised in Namuna Bibi v. Rosha Miah I.L.R. (1911) C. 482 but not argued with assurance (vide page 486). The learned Judges considered that an appeal lay under Section 47, Civil Procedure Code, as it was a question between the parties in execution. This Court has applied Section 47 to applications to set aside a sale that has been illegally held, apart from irregularities in publishing or conducting it[vide Anantharama Aiyar v. Kuttimalu Kovilamma : (1916)30MLJ611 and Muthiah Cettiar v. Bava Sahib : AIR1915Mad392 But the petition of 18th November, out of which this appeal and revision petition have arisen, was not a petition to set aside a sale, as no sale had been held when it was presented. The order of the Subordinate Judge dismissing it was passed before any sale was held, and thus it cannot be treated as an order upon an application under Section 47 to set aside an illegal sale. The grounds upon which the judgment-debtor tried to stop the sale were that the previous execution petitions were dismissed and that their dismissal put an end to the attachment. He did not then raise the contention, which he has raised here, viz., that the attachment before judgment only enures for the first execution application after decree. If the judgment-debtor had put forward this objection before the sale took place, the decree-holder might have overcome the difficulty by applying for a fresh attachment of the lands. After the sale had been held, it does not appear that he made an attempt to have the sale set aside by the Sub-Judge under Section 47 as illegal for want of a fresh attachment upon this ground, which has not been considered in the Judge's order of November 29, 1924, and the present appeal cannot be treated as an appeal against an order which the Sub-Judge might have made if such a contention had been put forward at the proper time. For these reasons, I consider that the only order we can make is to dismiss this appeal with costs. The revision petition being only an alternative remedy to the appeal is dismissed without costs.
Madhavan Nair, J.
4. This appeal arises from an application made by the appellant judgment-debtor objecting to the sale of certain properties in execution of the decree in O.S. No. 117 of 1918, Sub-Cdurt, Coimbatore, on the ground that the properties in question had not been attached prior to the order for sale. The decree-holder, the respondent before us, had obtained a decree for money against the appellant and had attached the said properties before judgment. After the decree, he filed two successive applications for execution which were returned by the Court for making some corrections and for the production of some papers. As the directions of the Court were not complied with these petitions were eventually dismissed. The decree-holder afterwards filed E.P. No. 35 of 1922 for the execution of his decree by sale of the properties and the sale was fixed for the 24th November, 1924. When the appellant became aware of the said execution petition he applied to the Sub-Court in E.A. No. 722 of 1924 praying 'to stop the sale fixed for 24th November, 1924 and to vacate the whole proceedings in E.P.R. No. 35 of 1924 and to dismiss the petition and to pass such other and further orders as may be just and necessary.' The Subordinate Judge held that since the two petitions which were dismissed for non-compliance with the Court's order could not be considered as execution petitions in accordance with law, their rejection could not. operate to vacate the existing attachment under Order 21, Rule 57, Civil Procedure Code, and that therefore no re-attachment was necessary to bring the properties to sale. In this view he held that there was no need to stop the sale or to dismiss the execution petition (E.P.R. No. 35 of 1924) and that the respondent has rightly brought the attached properties to sale. The properties have since been sold and purchased by the decree-holder.
5. It is argued by the appellant that the petitions which were dismissed were execution petitions in accordance with law, that since they were dismissed for the default of the decree-holder, the attachment of the properties has ceased under Order 21, Rule 57, Civil Procedure Code, and that as no further attachment was made the order of the Subordinate Judge to proceed with the sale of the properties should be set aside. Besides supporting the order of the learned Judge on the reasons contained in it the respondent in this Court has put forward an additional ground in further support of the order, namely, that even if the attachment has ceased under Order 21, Rule 57, Civil Procedure Code, the failure to re-attach the properties prior to the sale is only an irregularity and not an illegality vitiating the sale; and that unless the Court is satisfied that the petitioner sustained substantial injury by reason of such irregularity the Court should not set aside the order. He has also argued that no appeal lies against the order passed by the Subordinate Judge under Section 47 of the Code of Civil Procedure.
6. The questions for our consideration arising upon the above contentions of the respective parties are: (1) Are the petitions dismissed for default by the Subordinate Judge for non-compliance with his directions execution petitions in accordance with law? (2) Does Order 21, Rule 57, Civil Procedure Code, apply to the facts of this case? (3) If questions 1 and 2 are decided in favour of the appellant, is the sale of properties without an attachment void ab initio or is absence of attachment prior to sale only an irregularity? (4) Does an appeal lie against the order?
7. As regards question 1, I have no doubt the opinion of the Subordinate Judge is clearly wrong. The respondent's learned vakil himself has only very faintly attempted to support it. I have carefully examined the second petition dismissed for default by the Subordinate Judge. I am satisfied that it has complied with all the requirements demanded by the Code and that it is an application in accordance with law under Order 21, Rule 17, Civil Procedure Code. The paper that was called for but not produced for want of time, viz., the copy of the attachment list prepared by the Amin, was not as was seen subsequently, absolutely necessary for proceeding with the execution of the decree in this case and it was found, when requisition for the same paper was made in E.P. No. 35 of 1924 also, and on which sale of the properties was afterwards ordered, that the document called for had been destroyed. In fact, the order for sale of the properties now objected to was passed in E.P. No. 35 in the absence of this document. In these circumstances I am satisfied that the applications for execution were really in accordance with law and the Court could have passed orders on them to effectively carry out execution.
8. In the view that the applications dismissed for default are applications in accordance with law, the next question for us to consider is whether Order 21, Rule 57, Civil Procedure Code, applies to the facts of this case. According to that rule, when any property has been attached in execution of a decree and the application filed for execution has been dismissed by reason of the decree-holder's default, such dismissal will have the effect of vacating the attachment. In this case, as already mentioned, the properties had been attached before judgment. Order 38, Rule 11, Civil Procedure Code, states that when a decree is subsequently passed it shall not be necessary upon an application for execution of such decree to apply for re-attachment of the property. It has been held in Meyyappa Chettiar v. Chidambaram Chettiar (1923) 46 M.L.J. 415 that Order 21, Rule 57, Civil Procedure Code, applies to cases where property had been attached before judgment and that if an execution application filed after the passing of the decree has been dismissed on account of the decree-holder's default, then the attachment ceases. Applications for executions in this case having been dismissed by reason of the decree-holder's default, it follows from the authority of this ruling that the attachment existing on the properties ceased and these, when ordered to be sold, were not under attachment. This conclusion renders it necessary to decide the third question raised by the parties, namely, whether a sale of properties in execution without an attachment is void ab initio.
9. In Sharoda Mayee Burmonee v. Wooma Moyee Bur-monee (1867) 8 W.R. 9 it was held by Jackson, J that an attachment Was not an essential preliminary in an execution sale. The reason for this view is thus stated by the learned Judge:
Attachment is a measure resorted to by the decree-holder for his own protection and the protection of purchasers of the property to be sold, and it consists in the case of immoveable property merely in a prohibition by the Court by which the judgment-debtor is restrained from alienating the property previous to the sale. This, therefore, being merely a measure for the protection of the decree-holder and the purchasers of the property, the absence of it is not, it appears to me, an objection which the judgment-debtor is competent to raise.
10. In Baboo Luchmeeput v. Baboo Lekraj Roy (1867) 8 W.R. 415 the same Court held that a sale without attachment was irregular; but, as pointed out in Kishory Mohum Roy v. Mahomed Mujaffar Hossain I.L.R. (1890) C. 188, 'as that was a case of sale of moveable property and the suit was one for damages, the Court was not called upon to decide whether the sale should be regarded as a nullity.' Though the decision in Sharoda Moyee Burmonee v. Wooma Moyee Burmonee(1867) W.R. 9 was under the Civil Procedure Code of 1859 which did not contain a provision corresponding to Order 21, Rule 64 of the present Civil Procedure Code, yet the reasoning of the learned Judge has been accepted and applied in deciding cases both under the Act of 1882 and under the present Code by our High Court. In Muniappa Naick v. Subramania Ayyan (1894) 5 M.L.J. 60 on the ground that 'the object of attachment is to take the property out of the disposition of the judgment-debtor ' the learned Judges, Muthuswami Aiyar and Best, JJ. held that the omission to attach under Section 274 of Act XIV of 1882 was only an irregularity. In Ramaswami Naick v. Ramaswami Chetti (1907) 17 M.L.J. 201 it was held for the same reason that the sale in execution of a decree is not invalid although there has been no attachment before sale as required by the Code. These decisions and the decisions in Kishory Mohun Roy v. Mahomed Mujaffar Hossain I.L.R. (1890) C. 188 and Sheodhyan v. Bholanath (10) were followed by Sankaran Nair and Sadasiva Aiyar, JJ. in Velatyutha Muppan v. Subramaniam Chetti (1912) 24 M.L.J. 70 where they held that a sale of immoveable property in execution of a decree without the preliminary attachment is not null and void. This was a decision under the new Code. The latest reported decision of this Court is to be found in Sivakolundu Pillai v. Ganapathi Aiyar (1917) M.W.N. 89 where the learned Judges held that 'attachment is only a step to be taken by the executing Court in bringing to sale the properties of a judgment-debtor. If such a step is omitted, the sale can he set aside only if it has resulted in substantial loss' and the absence of attachment does not affect the jurisdiction of the executing Court to sell the immoveable property. Our High Court has thus held in a series of decisions, both under the old Code and the present one, that the absence of attachment does not affect the jurisdiction of the executing Court to sell the property and that the sale on that account is not null and void. In Sheodhyan v. Bholanath I.L.R. (1899) A. 311 the learned Judges of the Allahabad High Court after an elaborate consideration of the object of attachment have also arrived at the same conclusion.
11. As against these decisions, which, if accepted, would !en-tail the dismissal of his appeal, the learned Advocate-General relies upon a recent decision of the Calcutta High Court in Panchanan Das v. Kunja Behari (1917) 42 I.C. 259 to the effect that a Court has no jurisdiction to sell a property in execution which had not been duly attached. The learned Judges base their conclusion upon a decision in Sorabji Coovarji v. Kala Raghunath I.L.R. (1911) B. 156, some observations of the Privy Council in Thakur Barmha v. Jiban Ram Marwari and upon the terms of Order 21, Rule 64, Civil Procedure Code. It is to be noticed that the learned Judges do not in their judgment refer to the earlier decisions of their Court in Kishory Mohun Roy v. Mahomed Mujaffar Hossain I.L.R. (1890) C. 188 and Han Charan Singh v. Chandra Kumar Dey I.L.R. (1907) C. 787 which held that a sale is not to be considered as a nullity merely by reason of the absence of any attachment. The observations of Scott, C.J. in Sorabji Coovarji v. Kala Raghunath I.L.R. (1911) B. 156 that ' property can only be brought to sale after it has been duly attached and if the attachment came to an end upon the payment into Court on the 22nd September, 1909, the property was not duly attached at the time of the sale in January 1910 ' no doubt support the contentions of the appellant. We do not find in the course of the judgment any discussion of the case-law bearing on the question, nor an answer to the reasoning on which the view of the Madras and the Allahabad High Courts is based, namely, that an attachment is a measure resorted to for the protection of the decree-holder and the purchaser against intermediate alienations and is only a step to be taken by the executing Court in bringing to sale the properties of a judgment-debtor.
12. It is conceded in the judgment that the decision of the Privy Council is not exactly in point, but the following remarks of Lord Moulton are referred to as indicating the view of their Lordships that the property can only be sold when it has been duly attached: 'Their Lordships are of opinion that this is a very plain case. That which is sold in a judicial sale of this kind can be nothing but the property attached, and that property is conclusively described in and by the schedule to which the attachment refers.' The facts of the case and their Lordships' decision will clearly show that these observations only mean that a certificate of sale cannot be granted in which the property described is different from the property attached and specified in the proclamation of sale. In that case the judgment-debtor owned 16 annas share of a Mahal of which 10 annas share was mortgaged while the remaining 6 annas share were free from any mortgage. The proclamation of sale described the property to be sold as 6 annas share included in the mortgage. This was the property that was attached and sold in auction. An application was made on behalf of the auction-purchasers to. obtain a sale certificate for the 6 annas share purchased by them at the auction. In making this application they alleged that a mistake had been made in the schedule of the property to be sold in that the word ' not ' had been omitted from the description of the 6 annas in question and that the property should have been described as being 6 annas not mortgaged. They claimed that their certificate should be made out as being a certificate of the purchase by them of the 6 unencumbered annas instead of, as described in the schedule, ' 6 annas subject to the existing mortgage '. The Subordinate Judge granted them a certificate in the form in which they desired. This order, upheld by the High Court, was set aside by the Privy Council. After the extract from the judgment already referred to, their Lordships state, 'In the present case the property was 6 annas subject to an existing mortgage. The effect of the certificate of sale granted by the order of the Subordinate Judge is to make the sale that of a property not attached, namely, the 6 unencumbered annas, a property which could not be sold in such proceedings inasmuch as it was not the property attached.' Later on their Lordships say : ' In this case we have to deal with identity and not description. ' Their Lordships conclude thus : ' It was beyond the powers of the Court to make such an order inasmuch as there was no power to sell in these judicial proceedings the property thus certified to have been purchased. ' It will thus appear that the extract quoted from their Lordships' judgment in Panchanaw Das v. Kunja Behari (1917) 42 I.C. 259 was only meant to indicate that the Court has no power to include in the sale certificate properties not attached and sold. Their Lordships were not called upon to consider directly the question whether the absence of prior attachment will deprive a Court of its jurisdiction to sell the properties in execution of a decree. Thus understood, it appears to me that the dictum of the Privy Council cannot be relied upon in support of the appellant's arguments.
13. The terms of Order 21, Rule 64, Civil Procedure Code, no doubt show that attachment would ordinarily precede a sale of the properties in execution. But, for the reasons mentioned, the decisions above referred to have held that the absence of such attachment would not vitiate a sale.
14. In Macnaghten v. Mahabir Pershad Singh I.L.R. (1882) C. 656 the question whether the notice of attachment not having been properly published would affect the sale or be an irregularity in conducting the sale was raised before the Privy Council but was not gone into, inasmuch as that point was given up by the applicant at the trial before the Judge. In the absence of a definite pronouncement by their Lordships of the Privy Council I am not inclined to follow the decisions in Panchanan Das v. Kunja behari (1917) 42 I.C. 259 and Sorabji Coovarji v. Kala Raghunath I.L.R. (1911) B. 156 in preference to the long course of decisions of this Court. Following these decisions the sale in this case can be set aside only if the Court is satisfied that the appellant has sustained substantial injury by reason of the irregularity complained of, namely, the absence of attachment. It has not been argued before us that he has sustained any such substantial injury and he has also not asked us to adjourn the hearing of this case till the disposal of the application filed by him in the Lower Court. It therefore follows that this appeal will have to be dismissed. As I have decided to dismiss the appeal on the merits, I do not express any opinion as regards the ' appealability ' of the order passed by the Subordinate Judge.
15. In the result this Miscellaneous Appeal is dismissed with costs. The connected Civil Revision Petition is also dismissed but without costs. No orders are necessary on the stay petition.