A. Alagiriswami, J.
1. The third defendant is the appellant. He is a purchaser of the suit properties from the first defendant and one Alamelu Ammal to whom the properties belonged by a sale deed dated 7th September, 1952. In execution of a decree obtained against the first defendant and Alamelu Ammal in O.S. No 130 of 1949 the suit properties were attached in R.E.P. No. 358 of 1952. That petition was dismissed on 13th October, 1952 keeping the attachment alive for three months. The next execution petition R.E.P. No. 816 of 1952 was filed on 19th November, 1952 and in that execution the plaintiff became the purchaser of the whole of the suit properties. Thereafter the plaintiff filed O.S. No. 374 of 1955 for possession of the properties he purchased in Court auction. Alamelu Ammal's legal representative, that is the present second defendant (daughter) filed an application for setting aside the sale on the ground that on the date the sale took place her mother had died. This application was ultimately allowed and the sale as far as Alamelu Ammal' s share was. concerned was set aside. The suit, O.S. No. 374 of 1955, filed by the plaintiff was also allowed to be dismissed. Thereafter he filed the suit out of which the second appeal arises for partition and possession of the half share to which he is entitled.
2. Three contentions were taken on behalf of the contesting third defendant. The first was that as R.E.P. No. 358 of 1952 had been dismissed for default the order keeping alive the attachment for a period of three months was wrong and therefore the sale in R.E.P. No. 816 of 1952 was not a valid sale so as to give the plaintiff a right even to a half share in the properties sold. The second was that the earlier suit by the plaintiff for possession of the whole of the properties having been dismissed this suit is barred under Order 2, Rule 2. The third was that the plaintiff was entitled to mesne profits only from the date of the suit. The Courts below have held against the appellant on all these points. I shall first deal with the first point.
3. The sale in favour of the third defendant was during the pendency of the attachment which had been ordered on 13th October, 1952 in R.E.P. No. 358 of 1952 to continue for 3 months. The contention of the third defendant as already mentioned was that this order allowing the attachment to continue for a period of three months was contrary to the provision of Order 21, Rule 57, and is therefore not a valid order, that the attachment should therefore be deemed to have ceased on 13th October, 1952 and therefore the Court auction purchase by the plaintiff will not prevail against the sale in favour of the third defendant. Order 21, Rule 57, is in the following terms:
57.(1) Where any property has been attached in execution of a decree and the Court hearing the execution application either dismisses it or adjourns the proceedings to a future date it shall state whether the attachment continues or ceases; provided that when the Court dismisses such an application by reason of the decree-holder's default the order shall state that the attachment do cease.
4. The argument in this case is that as R. E. P. No. 358 of 1952 was dismissed on 13th October, 1952 because encumbrance papers were not submitted it should be deemed to be a case of decree-holder's default and therefore the attachment ceased. The rule itself states that where the dismissal of execution application is by reason of the decree-holder's default the order of the Court shall state that the attachment do cease Supposing for instance an order does not say that the attachment shall cease It may well be argued that unless the Court directs the attachment to cease the attachment would not cease. But we are not concerned with a case of that kind. In this case the Court specifically directed the attachment to continue for three months. Even assuming that the dismissal was because of the decree-holder's default, the order directing the attachment to continue cannot be said to be on an order made without jurisdiction It may be a wrong order but it is certainly not an order made without jurisdiction. Therefore it is difficult to say that the order directing the attachment to continue for three more months is a void one and that therefore no effect should
5. The appellant relied upon a decision in Namuna Bibi v. Rosha Miah (1911) I.L.R. 38 Cal. 482, where it was held that where there was an order to the effect, : 'The execution case is accordingly dismissed, the properties will remain under attachment'--the subsequent application for execution without issuing a fresh attachment should notwithstanding the order continuing the attachment, be dismissed. At that time Order 21, Rule 57 specifically stated that upon the dismissal of an application the attachment shall cease. Under the present rule the attachment does not automatically cease but the Judge shall direct that the attachment shall cease; if he does not so direct it may be argued that the attachment would not automatically cease. In any case where the learned Judge directs that the attachment shall continue it is not possible to say, as I already stated, that it is an order made without jurisdiction.
6. Reliance was however placed on behalf of the appellant, on the decision of a Bench of this Court in Venkata Rao v. Surya Rao Bahadur I.L.R.(1950)Mad.39 : (1949) 1 M.L.J. It was there held that the language of Order 21, Rule 57 does not make it a condition precedent for the termination of the attachment that the Court should make an order that the attachment ceases, that it merely directs the Court to state the consequence of the dismissal, that is the termination of the attachment. That it is the dismissal by reason of the decree-holder's default that brings about the termination of the attachment and the Court is merely directed to state in the order that consequence and that if the Court omitted to state so it would not prevent the attachment from coming to an end. Even this case, it should be noticed, did not deal with a situation where the Court concerned specifically made an order that the attachment will continue.
7. This decision has been noticed in a subsequent Bench decision of this Court in Murugappa v. Nayanim : AIR1950Mad314 . Referring to the observations in the earlier decision the Bench stated as follows:
The order in that case which was construed by the learned Judges as an order of dismissal on account of the decree-holder's default was as follows : 'The petitioner had ample time even after filing the E. P. Rejected'. The reference is to the production of the encumbrance certificate. The learned Judges held that this was an order of dismissal on account of the default of the decree-holder, the attachment ceased even though the Court omitted to state that the attachment would cease. As was observed by the learned Judges in that case, it is not open to us to canvass; the correctness of the order. The only question is whether the order dated 2nd January, 1943 could be construed as an order of dismissal. The learned Judges in that case found no indication in the order to show that what the learned District, Munsif wanted to do was merely to adjourn the petition. Ultimately, we have to determine on the circumstances and facts of the case before us what was intended and what was expressed by the learned Judge when he passed the order. In our opinion, it is clear that the learned Judge did not dismiss the application. Still less did he indicate that there was default on the part of the decree-holder which deserved a dismissal. On the other hand, the opening words of the order keeping the attachment alive make it abundantly clear that the Judge did not intend to dismiss the application and thereby to raise the attachment. What he did was to keep the attachment alive and to permit the decree-holder to apply for the proclamation of sale of the attached properties by means of a fresh petition. Once we hold that there was no dismissal of the execution petition for the default of the decree-holder, the law is clear that the attachment would continue, especially when the Judge himself directed that it should continue till the decree was fully satisfied. It follows therefore that on the date of the sale in favour of defendant 6 i.e., on 12th December, 1942, there was a valid attachment subsisting in pursuance of which eventually the Court sale took place and the plaintiff became the purchaser.
8. This decision would apply exactly to the facts of the present case. When the learned Judge in R. E. P. No. 358 of 1952 directed that the attachment would continue for a period of three months it means that he was satisfied that it was dismissed not for the default of the decree-holder, and that is the reason why he allowed the attachment to continue for three more months.
9. The next decision is that of Basheer Ahmed Sayeed, J., in Govinda Padayachi v. Kannammal (1957) 1 M.L.J. 201 the learned Judge observed 3
If the Court had intended that the execution petition should be treated as dismissed for default and that the proceedings should terminate finally, it would have felt bound to order that the attachment was also to cease. But the Court exercised its discretion actually the other way.
10. In Krishnaswami Iyengar v. Vedavalli Ammal : AIR1959Mad218 , Ramachandra Iyer, J., (as he then was) considering a similar situation remarked:
The fact that in the present case the attachment was ordered to continue would show that E. P. No. 661 of 1955 was not dismissed for default.
11. The latest judgment of this Court is in Palaniappav. Muthu Veerappan : AIR1966Mad406 . There Natesan, J., referred to the earlier decision of Basheer Ahmed Sayeed, J., as well as of Ramachandra Iyer, J., as he then was, after observing as follows:
At this stage the correctness of the order on the E. P. is not open to challenge. This Court has only to interpret the order, and when one finds the Court continuing the attachment, the proper interpretation would be the execution petition itself is not being terminated but adjourned for the nonce. We cannot readily assume that the Court intended passing a patently illegal order.
12. The appellant then sought to rely upon a decision of the Andhra Pradesh High Court in Kangayya v. J. Reddeyya : AIR1960AP634 . That was a decision of Chandra Reddy, C.J., and Narasimhan, J., The Bench referred to the decision in Venkata Rao v. Surya Rao Bahadur I.L.R. (19501 Mad. 39 : (1949) 1 M.L.J, but the subsequent decision of a Bench of this Court to which Chandra Reddy, C.J., was himself a party, was not referred to. In any case that decision merely dealt with a case where the petition was dismissed for default and did not state that the attachment would cease and it was held that the attachment would in any case cease because of the wording of the rule in Order 21, Rule 57. It was not concerned with a case where the Court ordered the attachment to continue. It is therefore clear that where a Court dismisses an application for execution and allows the attachment to continue, the position is not the same as where the petition is dismissed and nothing more is said. In the latter case it may be said that the attachment would cease as held in Venkata Rao's case I.L.R. (19501 Mad. 39 : (1949) 1 M.L.J:
13. As regards the next point about Order 2, Rule 2, it is not clear how that provision of law applies here at all. It is enough to say that there is no substance in this contention. The earlier suit was for possession of the whole of the property. The present suit is only for partition and possession of the plaintiff's half share. The cause of action for the two suits is quite different. As regards the third point there is really no question of mesne profits as between two co-owners. It is really a case of accounting. I do not think therefore that the judgment of the Court below calls for interference on any of the grounds suggested.
14. The Second Appeal is dismissed. There will be no order as to costs. Leave granted.