Authored By : Atkinson, Chapman

Atkinson, J.

1. This application, by way of miscellaneous appeal and revision, comes before us from the order of the District Judge of Purulia, dated the 12th of September 1917. It is necessary shortly to state the facts for the purpose of considering the legal question which arises for determination.

2. On the 19th of August 1912, the plaintiff obtained a money decree jointly against the defendant and others, and on the 8th of October 1912, a portion of the defendant's property was attached, namely, a house in which the judgment debtor resided. On the 15th of May 1916, the judgment-debtor's house so attached was sold in execution of the decree. On the 27th of May 1916, an application was made to set aside the sale and the Subordinate Judge, before whom the application came, dismissed the application on the 29th of July 1916; and on the 10th of November 1916 there was an appeal from the order of the learned Subordinate Judge. The sale was set aside by an order of the Appellate Court on the ground that the valuation had not been properly ascertained and stated in the sale proclamation. Subsequently a fresh application for leave to issue execution was presented and the same property was again offered for sale. With regard to this application two objections are urged. One is that the second application for execution was illegal, inasmuch as there had not been a second attachment of the judgment-debtor's property; that the first attachment had expired or elapsed and that before a second execution could issue there must be a new and fresh attachment of the property in suit. The second ground taken was that the valuation had been improperly stated. We are only concerned in this appeal with the first contention put forward by the learned Vakil for the defendant-judgment debtor, namely, whether or not the first attachment expired and could not be revived by reason of the order of the Appellate Court setting aside the sale. No case has been cited before us to justify the proposition put forward by the learned Vakil for the judgment-debtor. There seems to be a great deal of authority strongly in favour of the view that the mere setting aside of a sale does revive an antecedent attachment and that it becomes unnecessary to issue a second attachment, and that a second execution can issue based upon the prior attachment made before the sale was set aside. It is necessary to consider what the law and the practice was before Order XXI, rule 57, was enacted. Prior to that time there was a doubt as to whether in the case of an application for execution being dismissed for default of the decree-holder the antecedent attachment was revived to support a second application for execution. Order XXI, rule 57, has set that doubt at rest, because it expressly provides that where default is made by the decree-holder and the application for execution is dismissed by reason of such default, that then the attachment which has been made ceases to be of any force. In the present case, however, no default on the part of the decree-holder can be relied upon and the ground upon which the Sale was set aside was, not by reason of any default on the part of the decree-holder, but by reason of the Court not having performed its duty in a judicial way, namely, having failed to assess the value of the property upon a right principle. The learned Judge in the lower Appellate Court has relied upon Shiam Lal v. Roshan Lal 35 Ind. Cas. 230 ; 14 A.L.J. 363, for the purpose of showing that when the parties are seriously at issue with regard to the valuation of the property offered for sale, it is the duty of the Court to go into the matter and determine the value in a judicial manner. With that view we agree; but as the matter does not expressly arise for our decision, it is unnecessary to do more than to express our concurrence with the opinion of the learned Judge. What we have to consider in this case is the law with regard to the question whether upon the setting aside of a sale the antecedent attachment is revived so as to support a second application for execution. In Gunno Singh v. Muddun Mohan Singh W.R. (Gap.) 26, it is distinctly laid down that where an attachment is once legally obtained it revives upon the reversal of the sale in execution. The learned Judges who decided that case were Loch and Norman, JJ., and it is desirable to quote one or two passages from their Lordships' judgment; at page 28 their Lordships say: "After considering the subject in all its bearings as put before us by the Pleaders of either party, we come to the conclusion that the effect of the late Sudder Court's decision of the 22nd of November 1857 was only to declare the sale to be null and void, but without prejudice to the attachment or other proceedings in execution which had been rightly and legally performed. We think that, by the setting aside of the sale, the parties were simply remitted to the position in which they stood immediately before the sale, and, therefore, that the attachment must be deemed to have revived."

3. Their Lordships then refer to a case of the Privy Council and quote from the judgment of their Lordships of the Privy Council a passage which seems to me to be very important. It runs as follows:--

It would be contrary to general principles and a senseless addition to all the vexations and delay in the course of procedure to hold that, when for any reason, satisfactory or not, the execution of a final decree in a suit fails or is set aside, and the proceedings as regards that execution are taken off the file, the whole suit is discontinued thereby, and the further proceedings for the same purpose are to be considered as taken in a new suit.

4. Having quoted the above passage from the judgment of the Privy Council their Lordships proceed: "And we think that, were it otherwise, great injustice would be done to the judgment-creditor. For what is the position he would find himself in on the reversal of a sale, if all the steps he had properly taken in execution were to go for nothing It would be this. The creditor, after publicly attaching the property and thereby declaring to all the world that he had made it legally liable for the satisfaction of his debt, and taking every necessary step for the sale of the property, would find, in the event of the sale being set aside for some law in the proceedings with which he had nothing to do and over which he had no control, that a third party, a stranger to him, had, with the view of assisting the judgment-debtor to set aside the sale, purchased from the judgment-debtor the whole or a part of the property, and on the reversal of the sale holds him at arm's length and tells him: 'True, you made this property legally liable for your debt; but owing to a flaw in the subsequent proceedings, the sale was invalid; I took advantage of this defect, purchased the property, assisted in getting the sale reversed, and now you must look elsewhere than to this property for the satisfaction of your claim'".

5. These observations apply with equal force to the facts of this case. They clearly indicate the view which their Lordships took with regard to the revival of an attachment where a sale is set aside in an execution proceeding. Likewise the law will be found stated in Gossain Munraj Pooree v. Deen Dyal Lall 20 W.R. 10 at p. 20. In that case Mr. Justice Phear, a most distinguished and able Judge, stated as follows: "At the time he attached (i.e., the properties), then his judgment-debtor had the rights of a mortgagor over it according to the very case of the present plaintiffs, i.e., he had an equity of redemption which it was competent to the defendant No. 1 to sell after attachment. The attachment remained in being, and a sale of part of the property was held in December 1868. That sale was afterwards set aside on the ground of irregularity by a decree of the High Court. But obviously, as we think, the setting aside of that sale for irregularity under the circumstances which occurred did not displace the attachment. The property was still left in the condition of attached property and liable to be sold under the attachment if the judgment-creditor went regularly to work for that purpose." So also in Mahomed Warris v. Pitambur Sen 21 W.R. 435, the learned Chief Justice Couch dealing with this matter said: "A suit was brought and the plaintiff obtained a decree establishing his right, namely, a right to attach the property showing that the order for the release of the property from attachment was improper. The effect of that decree must be to revive the attachment, or rather not to revive the attachment, but to set aside the order of release which had been made, and therefore to make the property still subject to the attachment, to restore the state of things that had been disturbed by the order of release." Although the term 'release' is used in that decision, its principle applies to the facts of the case before us. Another authority to which I desire to refer in this connection is Aziz Bux v. Kaniz Fatima Bibi 15 Ind. Cas. 49 ; 34 A. 490; 10 A.L.J. 48. In that case their Lordships were considering whether or not the case before them was within the provisions of Order XXI, rule 57, and their Lordships there decided that the particular act by reason of which the sale was set aside in that case was not one due to the default of the decree-holder and that rule 57 of Order XXI only had application to a case in which a sale is set aside or the proceedings in execution are dismissed by reason of the default of the decree-holder. Accordingly they held in that case that inasmuch as the proceedings were dismissed or set aside not by reason of default of the decree-holder, that, therefore, the prior attachment revived upon the sale being set aside. So far as we have been able to trace the authorities, it is quite clear that the law and practice has always been that where a sale is set aside for any reason other than default on the part of the decree-holder, the attachment which has been obtained prior to the first sale being set aside revives to support a second or subsequent application for execution and no fresh attachment is necessary.

6. In Woodroffe's Code of Civil Procedure there is a passage at page 963 which says that "revival of execution proceedings will not revive the attachment so as to prejudice the rights of strangers who have in the interval acquired an interest in the properly." The only authority cited for this proposition is Sasirama Kumari v. Meherban Khan 9 Ind. Cas. 918 ; 13 C.L.J. 243. This was a judgment of Mookerjee and Coxe, JJ., but that case, in our opinion, is essentially different in its facts from the present one. That case dealt with an attachment before judgment; and it seems to us that different considerations apply to an attachment before judgment and an attachment after judgment and decree. Moreover, so far as we can see, what that case decided was that no attachment shall revive so as to prejudice a third person, and that in itself clearly distinguishes that case from the one now before us.

7. We are of opinion that once an attachment is properly and legally obtained and the property attached is put up to sale, and the sale is afterwards set aside, that then the antecedent attachment revives and by reason of its revival supports a second application for leave to issue execution, unless the ground upon which the sale is set aside is default on the part of the decree-holder.

8. For these reasons we are of opinion that the learned Judge was right in arriving at the conclusions at which he has arrived and that he very properly dismissed the judgment-debtor's objections. Accordingly we dismiss this appeal with costs. The Rule which was issued in this matter (namely, Civil Revision No. 299 of 1917) is also discharged.

Chapman, J.

9. I agree.