1. This appeal arises out of a mortgagee's suit for sale. The only question for determination in the appeal is whether the lower Court was right in exonerating item 3 from liability to the plaintiff's claim. This item was purchased by defendant 2 on 26th January 1933 in execution of the decree which he had obtained against the mortgagors in O.S. No 406 of 1926 on the file of the District Munsif's Court of Kumbakonam. During the pendency of that suit he had attached this item before judgment on 5th October 1926 and the mortgage in plaintiff's favour was executed only on 28th October 1926; The decree in O.S. No. 406 of 1926 was passed on 20th September 1927. If matters had not been complicated by what happened in connexion with one of the execution applications in the money suit, defendant 2's title would of course have prevailed against the mortgage in the plaintiff's favour. It has however been contended on behalf of the plaintiff that by reason of an order passed by the executing Court on 1st August 1932 the attachment came to an end and that defendant 2's title was not derived under the attachment which subsisted on the date of the mortgage in the plaintiff's favour. The lower Court has declined to accede to this contention. The same contention has been pressed before us. We have come to the conclusion that the lower Court's view is correct. After obtaining the decree in O.S. No. 406 of 1926, the present defendant 2 took several steps in execution before we come to the petition on which the order dated 1st August 1932 was passed. But it is unnecessary to refer in detail to the earlier steps, because it has not been contended that anything that happened then has put an end to the attachment. On 24th June 1932, the application for execution marked Ex. 9 in the present case was presented. It was returned on 30th June 1932 with the following endorsement : 'Sale papers to be filed. Returned, time two weeks.' Two more weeks' time was taken by the petitioner's advocate and there was a representation; but on 20th July there was a further endorsement by Court 'Stamp the application.' Then the application was represented on 25th July 1932. It is on this representation that the order dated 1st August 1932 was made. The office note runs in these words:
Order of return, dated 20th July 1932, has not been complied with. Cause title has not been correctly given. No affidavit put in as to legal representative of defendant 1. Sale papers have not been duly put in. Amounts have not been correctly claimed.
2. The Court's order consists of the word 'rejected.' The learned Counsel for the plaintiff contends that this amounts to a 'dismissal' under Order 21, Rule 57, Civil P.C. and that the attachment has accordingly come to an end. The lower Court has held that this is only a 'rejection' under Order 21, Rule 17, Civil P.C. and such an order does not attract the consequences of a 'dismissal' under Order 21, Rule 57. We may mention in passing that the statement relating to the sale papers is inaccurate as pointed out by the learned Subordinate Judge. Sale papers do seem to have been put in as indicated in the docket. This was in fact so stated in the next application Ex. 10 bearing the same date. The other defects pointed out in the office note, namely, as to incorrectness in the cause title and in the amounts claimed and the absence of an affidavit stating that one of the respondents was the legal representative of defendant 1, are, as the learned Subordinate Judge has stated, defects of the kind contemplated in Rule 17 of Order 21. That Rule provides that the Court may either allow the defect to be then and there remedied or within a time to be fixed by it or the Court may reject the application. When the Court exercises its power of 'rejection' under Rule 17, the legal position seems to us to be that no execution petition in accordance with law must be deemed to have been filed. This is made clear by Clause 4 of Rule 17, which says that when an application is amended under the provision of Rule 1 it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented; the provision in Clause 4 of the same Rule says that when the application is admitted, the Court shall enter in the proper register a note of the application and shall order execution of the decree according to the nature of the application.
3. The learned Counsel for the plaintiff, appellant admits that if the correct view is that there was no proper execution application before the lower Court on 1st August 1932 there will be no scope for the application of Order 21, Rule 57. But he asks us to hold that there was an application which was dealt with by the lower Court as an execution application and was dismissed by it, whether rightly or wrongly, on the ground of the decree-holder's default. We are not prepared to accede to this contention. The circumstance that Ex. 9 was not even numbered in the ordinary course as an execution petition is not without some significance. It clearly indicates that the executing Court had not decided to admit the execution petition at all, but merely rejected it in limine as not complying with the formal requirements of law. Our attention has been drawn to the judgment of Burn, J. in C.M.S.A. No. 31 of 1935, where the learned Judge held an order of rejection to amount to an order of dismissal under Order 21, Rule 57, though it appeared even in that case that the execution petition had not been given a number. So far as we can gather from that judgment the application was rejected because the decree-holder failed to supply certain particulars-required by the Court. The argument based on the distinction between a 'rejection' under Rule 17 and a dismissal under Rule 57 does not seem to have been urged before the learned Judge. What the particulars called for by the Court in that case were, we are not in a position to gather from the papers available here and we are therefore unable to say whether they merely related to formal defects within the meaning of Rules 11 to 14 of Order 21, Civil P.C.
4. In interpreting Rule 57, it must be remembered that it deals in terms with a ease where on the petition which is ultimately dismissed an attachment has taken place. In such a case the execution petition must ex hypothesi have been taken cognizance of an execution ordered and it is only at a later stage that it must be dismissed as contemplated by Section 57. The words of the rule must be applied with caution to cases in which the attachment has taken place before judgment or on a prior execution application. It is in this latter class of cases that the distinction between a 'rejection' under Rule 17 and a 'dismissal' under Rule 57 will become material. On the facts already stated, we should have felt great hesitation in holding that if in this case there had been an order of dismissal on 1st August 1932 it could have been justified as a dismissal 'for default of the decree-holder.' We agree with the learned Counsel for the appellant that it may not always be open to the Court in later proceedings to consider whether the dismissal was right or wrong if that order had been allowed to become final. But where an order is passed in ambiguous terms and terms like 'reject' or 'struck off' are used and the Court is called upon to consider whether there was in fact an order of 'dismissal' within the meaning of Rule 57, the Court is entitled to take the circumstance into consideration in coming to a conclusion as to whether a dismissal was intended at all or not. We agree that there has been no dismissal in this case within the meaning of Order 21, Rule 57. The appeal therefore substantially fails. Objection has also been taken to the amount awarded by the lower Court's decree for costs in defendant 2's favour. It is stated that the item in which he is interested is worth only about Rs. 3000 and that there was no justification for the lower Court assessing his costs on the basis of one-half of the plaint claim, which comes to nearly Rs. 13,000. We think this objection is well founded. We accordingly reduce the amount of pleader's fee allowed to defendant 2 in the lower Court to Rs. 200 instead of Rs. 403-13-10. In other respects the lower Court's decree is confirmed and the appeal dismissed. Respondent 2 will be entitled to the costs of this appeal.