Nasim Ali, J.
1. The subject matter of the dispute in this appeal is a tank called Chaubari which has been recorded in O.S. dags Nos. 1971 of khatian no. 287 of the finally published Record of Rights relating to mouza Taki in the District of 24 Parganas. Defendant 1 attached this tank in execution of a decree against defendant 2. The plaintiffs thereupon filed an objection to the attachment on the ground that the tank did not belong to defendant 2 at all but was the exclusive property of the plaintiffs at the date of the attachment. This objection was disallowed as it was unnecessarily delayed. The tank was thereafter sold in execution and was purchased by defendant 1. The plaintiffs thereafter raised the present suit under Order 21, Rule 63, Civil P.C., for a declaration that the property belonged to the plaintiffs and was not liable to be attached and sold in execution of the decree against defendant 2. The defence of defendant 1 to this suit is that defendant 2 had 2/3rd share in this property at the date of the attachment and that Section 47, Civil P.C., is a bar to the maintainability of the present suit. The Subordinate Judge who heard the suit overruled the defence and decreed the suit. On appeal by defendant 1 to the lower Appellate Court, the Additional District Judge has affirmed the finding of the trial Judge that at the date of the attachment the tank did not belong to defendant 2 at all but was the exclusive property of the plaintiffs. He has however held that Section 47 is a bar to the maintainability of the present suit as the plaintiffs were parties to the suit in which defendant 1 obtained the decree against defendant 2 in execution of which the property was attached and sold. The learned Additional District Judge has also held that the present suit cannot be treated as an application under Section 47 as it was not filed within one month from the date of the sale. In this view of the matter the learned Additional District Judge has allowed the appeal and dismissed the suit. Hence this second appeal by the plaintiffs.
2. The only point for determination in this appeal is whether Section 47 is a bar to the maintainability of the present suit. In view of the fact that the plaintiffs were parties to the suit in which the decree in execution of which the property was attached and sold was passed, there cannot be any doubt that the question involved in the suit is a question between the parties to the suit within the meaning of Section 47, Civil P. C, although no decree was passed against them in that suit. The question as to whether the tank is liable to be attached and sold for satisfaction of; the decree against defendant 2 is a question which relates to the satisfaction of the decree. The dispute between the parties] in the present suit therefore clearly comes within the terms of Section 47 of the Code.
3. The next question is whether this suit can be treated as a proceeding under Section 47 of the Code. The learned Additional District Judge answered this question in the negative as he was of opinion that Article 166 Lim. Act, was a bar. That Article contemplates applications for setting aside sales which are not void but voidable. The appellants in this case do not want the sale to be set aside on the ground that it is voidable. Their case is that the property was not liable to be attached and sold and that the sale did not affect their interest in the property. The contention of the learned advocate for defendant 1 is that if the plaint in the suit be treated as an application under Section 47, it must necessarily involve a prayer for setting aside the sale as the executing Court cannot give any declaration after the sale but can only set aside the sale. Now if the plaintiffs had not been parties to the suit in which the decree under execution was passed, they could get the declaration that the sale did not affect the interest in this suit. But as they were parties in the suit, they cannot get the declaration in a separate suit as the declaration depends upon the determination of the question whether the property was liable to be attached and sold for satisfaction of the decree under execution and such a question can be determined only hinder Section 47. I am not aware of any provision of law which precludes the executing Court from giving such a declaration when it determines that the property was not liable to be attached and sold in the execution proceedings. The mere fact that the sale took place before the present suit cannot alter the position as the appellants' case is that the attachment and the sale founded on that attachment are of no effect so far as their interest in the property is concerned. They ask the executing Court to ignore the sale and to treat decree under execution as not satisfied by the sale. Article 166 of Lim. Act does not therefore apply to this case. The proper Article is Article 181.
4. The appellants' case is that defendant 2 had no interest in the property at the date of attachment and consequently it was not liable to be attached and sold. The Courts below have concurrently found that defendant 2 had no interest in the property at the date of attachment and that the property at the date of attachment was the property of the plaintiffs. The property therefore was not liable to be attached and sold for satisfaction of the decree under execution. The appellants instituted the present suit within the period of limitation prescribed by Article 181. I therefore treat the suit as a proceeding under Section 47, Civil P.C., and allow this appeal. I declare that the disputed tank was not liable to be attached and sold in execution of the decree obtained by defendant 1 against defendant 2 and the sale in question did not in any way affect the interest of the appellants in the disputed tank. The order of the trial Court is restored. The appellants will get their costs throughout on the footing that the case from the beginning was a proceeding under Section 47 of the Code. Hearing fee in this Court assessed at three gold mohurs.
B.K. Mukherjea, J.
5. I agree with my learned brother in the order that has been passed. The facts of this case He within a very short compass and there is no dispute about them after the concurrent findings arrived at by the Courts below. The controversy centres round the short point as to whether the plaintiffs' suit is barred under Section 47, Civil P.C. It is not disputed that the plaintiffs' father and defendant 2 were joint owners of the disputed property which is a tank and their shares were l/3rd and 2/3rd respectively. In the year 1923 there was a partition between them under which the tank in its entirety was allotted to the plaintiffs' father and defendant 2 got in exchange of his share a garden elsewhere. Defendant 1 got a decree against defendant 2 in Money Suit No. 195 of 1930 and in execution of that be attached the '2/3rd share of defendant 2 in the tank in suit. The plaintiffs thereupon preferred a claim under Order 21, Rule 58, Civil P. C, which was dismissed without investigation on the ground that it was unduly delayed. The property was then sold in December 1933. The plaintiffs brought this suit in August 1934 under Order 21, Rule 63, Civil P.C., and prayed for establishment of their title to the entire tank and for a declaration that id could not be attached or sold in execution; of the decree obtained by defendant 1 against defendant 2.
6. The defence raised by defendant 1 was of a three-fold character. It was eon-tended in the first place that the partition was a colourable transaction, in the second place a plea of estoppel was taken and the last contention was that the plaintiffs suit was barred under Section 47, Civil P.C. The trial Court negatived these contentions and gave the plaintiffs a decree. On appeal by defendant 1, the lower Appellate Court concurred with the findings of the trial Court on the first two points but dismissed the suit on the ground of its being barred under Section 47, Civil P. C, the reason being that the plaintiffs themselves were parties to Suit No. 195 of 1930 in which the decree was obtained by defendant 1. Mr. Roy Choudhury who appears in support of this appeal has assailed the propriety of this decision. His argument is that although the plaintiffs were nominally made parties to the suit, there was no relief claimed against them and no decree, even of dismissal, was passed against them. It is further stated that the question that arose between the plaintiffs and defendant 1 was not one relating to execution, discharge and satisfaction of the decree. In the alternative Mr Roy Choudhury contends that the suit could have been treated as an application under Section 47, Civil P.C.
7. Mr. Gupta, who appears for the respondents has sought to repel these contentions by saying, first of all, that the plaintiffs do come within the mischief of Section 47, Civil P.C., inasmuch as they were parties to the suit in which the decree was obtained and it is really immaterial whether any decree was passed against them or not. As against the prayer for treating the suit as an application under Section 47, Mr. Gupta raises the bar of limitation. His argument is that the suit being instituted more than 30 days after the sale took place is hit by Article 166, Lim. Act, and according to him it is not open to the plaintiffs merely to attack the attachment on the ground of want of judgment-debtor's title in the same. If an application is to be made under Section 47, there must be a prayer for setting aside the sale as the sale had already taken place. Now, so far as the first ground is concerned it appears that defendant 1 instituted the money suit which was one for contribution against a large number of co-sharers including the present plaintiffs. As it was alleged in the plaint of that suit that the present plaintiffs had paid their shares of the joint dues, there was no relief claimed against them, but the suit had to be decided in their presence as there was a question of shares raised in the same. The suit was not contested by anybody and it culminated in an ex parte decree against those defendants only against whom contribution was claimed by defendant 1. There was no direction in the decree so far as the present plaintiffs were concerned, Section 47, Civil P.C., speaks of parties to the suit and not of decree-holders or judgment debtors and the Explanation attached to the section makes it clear that even if the suit is dismissed against a person, he does not cease to be a party within the meaning of that section. It cannot be said that the plaintiffs were merely formal parties inasmuch as the suit being one for contribution, all the cosharers were proper if not necessary parties to the suit. If, as I have held, the plaintiffs were parties to the suit, the provision of Section 47 is imperative and obliges them to prefer an objection, if any, before the executing Court and that Court alone. The question certainly related to the execution of the decree obtained by defendant I and as to how far it could be satisfied from the property attached. It cannot be seriously argued that the section contemplates that the question must relate to the execution of the decree as between the attaching decree-holder on the one hand and the objecting defendants on the other.
8. There are indeed certain observations in Nijibal Islam Molla v. Golam Afsar Molla : AIR1934Cal277 upon which some reliance was placed by the appellants. In that case there was a suit for possession started by the plaintiff who was a decree-holder auction purchaser at a rent sale and defendant 1 was a cosharer landlord who was made a party to the rent suit in that capacity and who had purchased the tenant's right and got possession of the land some time before the sale. The Courts below had held the plaintiffs' suit to be barred against defendant 1 under Section 47 on the authority of the Full Bench decision of this Court in Kailash Chandra Tarafdar v. Gopal Chandra Poddar AIR 1926 Cal 798. This Court reversed the decision and held that the suit was not barred as against defendant 1. The decision could perhaps be justified on the ground that the Full Bench decision was not strictly speaking applicable to the facts of that case. But the observation of the learned Judges to the effect that
As there was no liability in the defendants to satisfy the decree, no question of execution, discharge and satisfaction of the decree could possibly arise as between the plaintiff on one hand and defendant 1 on the other,
seems to be very wide and taken literally would go against the plain wording of the section and the Explanation attached to it. The first ground argued by the learned advocate for the appellants must therefore fail. The only other point that requires consideration is as to whether this suit can be treated as an application under Clause (2) of Section 47, Civil P.C. The only objection to that, as raised by Mr. Gupta, is the plea of limitation under Article 166, Limitation Act. It may be conceded that Article 166 extends to all applications for setting aside a sale under Section 47, Civil P.C., and are not limited to applications under Order 21, Rules 89, 90 or 91. But, if the property was really not the property of the judgment-debtors, the attachment must be held to be void and the attachment and sale must go as a nullity out and out having no foundation to rest upon. Article 166, as my learned brother has pointed out, must be confined to oases where the sale is voidable only and not void and when the execution sale is a nullity, if a party files an application under Section 47 to have it pronounced a nullity or for setting it aside for safety's sake to avoid future difficulties, the proper Article would be Article 181 and not Article 166, Limitation Act. This principle has been applied in cases where the execution sale has been impeached as void ab initio on the ground of want of notice under Order 21, Rule 22, Civil P.C., see Raja Gopala Ayyar v. Ramanujachariar AIR 1924 Mad 431 and Monmothanath Ghose v. Luchmi Davi : AIR1928Cal60 and it has been held uniformly that if the sale is a nullity, it is not really an application to set aside the sale as contemplated by Article 166 but it comes under the residuary Article. In 55 Cal 964 Sir Arther Page observed in his judgment that the sale being void would not have to be set aside at all and the order as passed was in substance merely a declaration that the sale was a nullity and of no effect.
9. In the present case the plaintiffs have got to establish and in fact they have established that the attached property belongs to them and not to the judgment debtor. They are in these circumstances entitled to ask the Court to set aside the attachment, and the sale automatically falls through; and a mere declaration that the sale could not subsist and that the decree-holder would be free to start; execution proceedings again would be quite enough. I am not impressed by the argument of Mr. Gupta that the sale in this case cannot be said to be a nullity, because there are express provisions in Section 47 which oblige the party to a suit to make an objection within the proper time under Section 47, Civil P.C. The same argument could have been undoubtedly advanced in the case just now mentioned where the sale was held to be a nullity for absence of notice under Order 21, Rule 22, Civil P.C. Apart from that it seems that if there was no Section 47 the plaintiffs could have simply ignored the sale and instituted a suit for recovery of possession of the property on establishment of their title to it. Because of Section 47, they are obliged to bring the matter to the notice of the executing Court; but I cannot agree with Mr. Gupta that the executing Court had no jurisdiction to make an order of a declaratory character and the order must be one to set aside the sale. In these circumstances I agree with my learned brother that the suit must be treated as an application under Section 47, Clause (2), Civil P. C, and as the findings are in favour of the plain-tiffs they are entitled to an order in their favour. Accordingly the property must be held to be the property of the plaintiffs and not of the judgment-debtor and the attachment and sale must be held to be void, and of no effect so far as the plaintiffs are concerned.