1. This appeal is by the judgment-debtor and raises a point with regard to the construction of Section 168A, Ben. Ten. Act. The decree-holders obtained a decree for rent and in execution proceedings attached property other than that to which the decree relates. The sale was actually held after this new section had come into force. The appellant filed an application under Order 21, Rule 90, Civil P.C., and also under Section 47 raising this present point. The Munsif did not decide the former. He missed the point of the latter and made a conditional order to the effect that, if the appellant deposited the costs of the execution by a certain date, the sale would be set aside. The point is that the petitioner contends that the sale was held in contravention of the provisions of law and was therefore liable to be set aside. The decree-holders then appealed to the District Court. The learned District Judge did not decide the point under Section 47 but remanded the case with a direction that the Munsif should decide both the questions. The appellant then appealed to this Court on the ground that the question under Section 47 ought to be decided. It is obvious that, if he eventually succeeds in the appeal, it is mere waste of time for the parties to examine witnesses in connexion with the other matter. The property in question was attached before the new section came into force. It was sold on 14th January 1941 when the Act was in force. It is not disputed that the respondents will fail unless they can bring the case within Sub-section (2). The relevant words are these:
If the property so attached has not been sold, the Court shall, on the application of the judgment-debtor, direct that on payment by the judgment-debtor of the costs of the attachment, the property so attached shall be released.
2. It is conceded by the respondents that, if the appellant had paid the costs before the sale, he would have been entitled to have the property released from attachment, when it could no longer have been sold in execution of the decree. In support of the appeal Mr. Mallick contends that this sub-section really does not affect the prohibition contained in Sub-section (1). It merely means that, although the property is not liable to be sold, the attachment will remain in force, and the judgment-debtor will be at liberty to get the attachment removed by payment of the costs at any time. He suggests that this provision is put in as a sort of level to induce the judgment-debtor to pay the costs, which have been thrown away as a result of the amendment of the law. It is difficult to imagine a more futile provision. Although the property cannot be sold the attachment is to remain in force possibly for ever. Now the only person interested in the attachment is the decree-holder and any other person dealing with the property will be bound by it. When the attachment is maintained, the consequence is that the decree-holder is entitled to sell the property in execution of the decree. The section certainly gives the judgment-debtor the right to have the attachment removed by adopting a certain procedure. But if he does not choose to avail himself of that right, I can see nothing to prevent the decree-holder from selling the property in execution of the decree. I must note that Mr. Mallick expressed the willingness of the appellant to settle the case. That is a matter which cannot be decided now as the auction purchaser is not here. But there is nothing to prevent the parties from settling the case in the Munsif's Court. On behalf of the decree-holders Mr. Roy drew my attention to the fact that while this appeal was pending, the Munsif dismissed the appellants' case for default. That is a matter which obviously requires to be set right.
3. The case under Order 21, Rule 90 is not a matter which could be brought before this Court in second appeal. The only object of the appellant in filing this appeal was to have the other matter determined. That was a matter which did not require the examination of any witnesses. If the appellant were to succeed, it would be no longer necessary to press the application under Order 21, Rule 90. It was therefore pure waste of the parties time and money to investigate that matter while the appeal was still pending. In these circumstances, I cannot understand why the learned Munsif did not adjourn the case of his own accord without calling upon the I appellant to bring a stay order from this Court. That was the sensible order to make and was the only order which would have been to the benefit of both parties. In my opinion it was quite unreasonable, while this appeal was pending, to dismiss the case for default because the Munsif apparently thought that the appellant's pleader was not telling the truth, when he said that the appeal had been filed. If of course the auction purchaser had insisted upon going on and made a case that there never was an appeal in this Court, there might have been some reason for the action which the learned Munsif took. But in the circumstances of the case as they were I can find no justification for this order dismissing the application for default. The appeal is dismissed. In revision I set aside the order of the Munsif dismissing the appellant's application under Order 21, Rule 90 on 25th November 1941, and direct him to hear and determine it in accordance with law. Costs as between the auction purchaser and the appellant will abide the result. The decree, holder will pay his own costs. The hearing fee in this case is assessed at one gold mohur.