Dawson Miller, C.J.This is an appeal under Clause 10 of the Letters Patent from a decision of Mr. Justice Das. It arises out of an application made by the respondents u/s 213 of the Chota Nagpur Tenancy Act to set aside a sale of their tenure in execution of a rent-decree obtained by the appellants, their landlords.

2. The decree was obtained in the year 1915. After one unsuccessful application to obtain execution the decree-holders made a fresh application in July 1918 asking for realisation of the decretal amount by attachment and sale of the judgment-debtors moveable property and in case the decree still remained unsatisfied by attachment and sale of their Immovable property, namely, an 8-annas interest in village Mohanpore. This was not the tenure or holding in respect of which the rent decree was obtained. It appears that an application was made u/s 210 (2) to the Deputy Collector who had the powers of a Deputy Commissioner for permission to sell the property in question in this appeal without first making an application for the sale of the tenure or holding in respect of which the arrears of rent had accrued. Permission was granted but it does not appear that the Deputy Collectors reasons were recorded. Section 210 (3) of the Act provides that property referred to in Clause (2) may be brought to sale, if Immovable in the manner provided in the sections therein named of the CPC of 1882 including Section 284, which corresponds to Order XXI, Rule 64 of the present Code, which gives the Executing Court power to order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold and the proceeds or a sufficient portion thereof paid to the party entitled under the decree to receive the same. No preliminary attachment of the property was in fact made but the judgment-debtors were served with notice of the Bale and were aware of the date thereof the sale having been advertised took place on the 9th May 1919. Two of, the judgment-debtors, the respondents in the present appeal, filed an objection u/s 213. Their grounds of objection were 40 Ind. Cas. 621 that the property sold belonged to them only and not to the other judgment-debtors and 18 C 168 : 9 Ind. Doc. 126 that there had been a material irregularity in publishing the sale. The first ground of objection was given up and we are no longer concerned with it. In support of the second ground they contended that there had been no preliminary attachment as required by the CPC and farther that the sale was held within less than 30 days from the date of notification. The Sub-Divisional Officer held that these irregularities were not material and further that the judgment-debtors had sustained no substantial injury by reason of the irregularities.

3. On appeal by the judgment-debtors to the Judicial Commissioner it was held that the failure of the Deputy Collector to record his reasons for permitting the sale and the failure to attach the property under the provisions of the CPC as well as the fact of holding the sale within 30 days of the sale proclamation under Order XXI, Rule 68 of the CPC were material irregularities and rendered the sale void. The learned Judicial Commissioner further found that there was substantial injury to the appellants, adding} "Although, in the view I take, such a finding is unnecessary. This injury resulted from the prejudice to their rights which to my mind must of necessity follow from the adoption of the shortened procedure."

4. A second appeal was preferred by the decree-holders to the High Court and was heard before Mr. Justine Das who held that mere non compliance with the provisions of Order XXI, Rule 68 of the CPC does not ipso facto make the sale a nullity and that the sale should not be set aside without proof of substantial injury to the judgment debtors. He farther considered that the finding of the learned Judicial Commissioner as to substantial injury was not a proper finding in law as it was based upon the view that non-compliance with the rule mentioned necessarily prejudiced the right of the judgment-debtors. He accordingly set aside the order of the learned Judicial Commissioner and remanded the ate to him for a decision according to law with directions to some to a definite finding as to whether the judgment-debtors sustained substantial injury and, if so, whether such injury was sustained by reason of the admitted irregularity. It would, appear from this judgment that no point was taken before the learned Judge on behalf of the judgment-debtors that the sale was void either by reason of the non-attachment of the property or by failure of the Deputy Collector to record his reasons for permitting the sale u/s 210 of the Chota Nagpur Tenancy Act and it is not suggested before us now that these points were argued before him.

5. When the case went back on remand Mr. Foster had succeeded Mr. Reid as Judicial Commissioner of Chota Nagpur. Mr. Foster found that the irregularities complained of were material, as the sale was held 28 days instead of 30 days after the notice published in Court. The price fetched at the sale was considerably below the value set upon the property by the judgment debtors but there is no finding as to what the value of the property was. No evidence wag produced to show that the low price was directly due to the irregularity, the judgment-debtors were present at the time of the sale and the learned Judicial Commissioner considered that if the property were worth Rs. 6,000 as they stated it was very unlikely that they could not have raised a loan of under Rs. 500 to save the property by depositing the decretal amount. Ho also considered that the absence of attachment and the fact that the sale was held with in 30 days of the notice did not cause any substantial injury to the judgment-debtors. He accordingly dismissal the appeal. Again it should be pointed oat that it was nowhere argued before Mr. Foster that the sale was void by reason of any irregularity which had taken place.

6. From this order the judgment debtors preferred a second appeal to the High Court which again came before Mr. Justice Das. The learned Judge did not differ from the conclusions of fact arrived at by the learned Judicial Commissioner but it was argued before him that the failure to attach the property before sale rendered the sale a nullity, The learned Judge acceded to this view and set aside the judgment of the learned Judicial Commissioner and declared that the sale was inoperative and ought to be set aside but as the point bad not been argued before him on the previous occasion when he made the order of remand he ordered the judgment debtors the appellants before him, to pay the costs of that appeal and of the hearing before the Judicial Commissioner on remand.

7. From this decision the present appeal is brought by the decree-holders. Two points have bean argued before ns in support of the appeal 40Ind. Cas. 621. that the learned Judge, whose decision is now under appeal, ought not to have allowed the point, upon which his decision was based, to be taken as it had not been argued before him on the previous occasion, and (i) that the failure to attach the property although irregular does not render the sale void. In support of the first point it is argued that the order of remand which sat aside the decree of the Judicial Commissioner was a final order from which an appeal would his to a Division Bench and that, no appeal having been preferred from that decision on behalf of the judgment debtors, the learned Judge ought to have considered the point raised before him as precluded by his previous judgment, under the provisions of Section 105 of the Civil Procedure Code. Assuming that an appeal lay from Mr. Justice Das I think that there is much force in the argument that where a point which goes to the root of the suit is not argued before an Appellate Court it must be taken to hive been abandoned and if an appeal is permissible and no appeal is preferred the party who abandoned the point should nod be allowed to re-open it subsequently in the same case. See Haniraj v. Bijai Bam Singh 40 Ind. Cas. 621. It is unnecessary, however, to decide this question, as in the view I take of the second point the appellants must succeed.

8. In my opinion, the failure to attach the property before sale, although an irregularity under the Civil Procedure Code, does not render the sale nail and void In Kishory Mohun Roy v. Mahomed Mujoffar Hossein 18 C 168 : 9 Ind. Doc. 126 it was held that a sale it not to be considered a nullity merely by reason of the absence of any attachment. In that case the sale had been confirmed and a sale certificate granted before the question arose. In my opinion, this fast does not distinguish that decision from the presence case, because if the sale was in fact a nullity by reason of the absence of attachment its subsequent confirmation could not make it valid. That case followed the earlier decision of Jackson, J. in Sharoda Moyse Burmonee v. Wooma Moyee Burmonee 8 W. Rule 9. which also held that an attachment was not an essential preliminary to an execution sale. The case of Kishory Mohun Boy v. Mahomed Mujoffar Hossein 18 C 168 : 9 Ind. Doc. 126 was referred to with approval and followed by Woodroff, J. in Blari Charan Singh v. Chandra Kumar Dey 34 C 787 : A CWN 745. The High Court at Allahabad has also held in Sheodhyan v. Bholanath 21 A 311 : (1899) AWN 8419 : Ind. Doc. 907. that the absence of an attachment prior to the sale of Immovable property in execution of a decree amounts to no more than a material irregularity and is not sufficient, unless substantial injury is caused thereby, to vitiate the sale. The object of the attachment is, as stated in that case, to bring the property under the control of the Court with a view to preventing the judgment debtor from alienating it, and the requirement that the order of attachment should be publicly proclaimed is merely one of the require, meats of law for perfecting the attachment. The main object of the proclamation of the order is to give publicity to the fact that the sale of the particular property attached is in contemplation and to warn all parsons against taking a transfer of it from the judgment-debtor to the prejudice of the rights of the decree-holder. It is difficult to see why the absence of attachment which is primarily in the interests of the decree-holder can prejudice, the rights of the judgment debtor who has due notice of the sale.

9. It was contended, however, that the Court has no power to sell property not ordered to be sold by the decree unless such property has first been attached, and Order XXI Rule 64 was relied upon in support of this argument. That rule no doubt gives the Court executing the decree power to order that any property attached by it and liable to sale shall be sold or only such portion thereof as may seem necessary to satisfy the decree. The object of this rule would appear to be to give the Court a discretion to sell the whole or a part of the attached property as it thinks sit, but u/s 51 of the Code, which relates to procedure in execution, the general powers of a Court executing decrees enable it to order execution by attachment and sale or by sale without attachment of any property. It seems clear, therefore, that the jurisdiction of the Court to sell without attachment exists. Again the irregularity arising by reason of the sale within 30 days of the proclamation, although clearly an irregularity, has not the effect of making the sale a nullity without proof of substantial injury thereby to the judgment-debtor, It was so decided by their Lordships of the Judicial I Committee in Tasadduk Rasul Khan v. Ahmad Husain 21 C 66 : LR 20 I. A. 176 : 17 Ind. Jur. 584 : 6 SPCJ 324 : Rufique & Jacksons P. C. No. 131 : lo Ind. Dec. (N. s.) 676 (P. C).

10. The case of Raja Thakur Barmha v. Jiban Ram, Marwari 21Ind. Cas. 936 : 41 C 690 : 18 CWN 313 : 15 MLT 137: 12 ALJ 156 : 19 CLJ 161 : 26 MLT 89 : 16 Bom hB 156 : (1914) MWN 118 : 411 A 38 (PC) was relied on by the respondents for the proposition that nothing could be sold at a Court sale except the property attached. The effect of that decision, however, as I read it, merely is that where property is in fact attached and sold under the description mentioned in the Schedule what is in fast sold is the property comprised within the description and not acme other property which was not in fast attached and sold. In that case a six-annas share in a certain mahal, described as subject to a mortgage in the Schedule to which the attachment referred, was attached in execution and advertised for sale and eventually sold. Some months later the purchasers applied for a certificate of sale alleging that there had been a mistake in the Schedule which ought to have described the property as a six-annas unencumbered share Ten-annas were subject to the mortgage and six-annas were free and no doubt a mistake had been made. A sale certificate was granted by the Subordinate Judge with the altered description of property and a notification was issued in the Calcutta Gazette describing the property as unencumbered. This procedure was approved by the High Court, but on appeal to His Majesty in Council their Lordships held that that which is sold in a judicial sale of this kind can be nothing but the property attached and that property is conclusively described in and by the Schedule to which the attachment refers and that the effect of the certificate was to make the sale that of a property not attached which could not be sold in such proceedings. It was held that it was not a matter of mere misdescription which could be treated as an irregularity but one of identity and that an existing property accurately described in the Schedule had been sold, whereas the order of the Subordinate Judge granted a sale certificate which stated that another and different property had been purchased at the sale, and that what was done could not validate a sale of property which had not in fact taken place. The certificate was accordingly set aside. The decision is no authority for the proposition that if no attachment is in fast made the Court has no power to sell property at all.

11. It is true that in spite of the decisions already referred to of the Calcutta High Court that Court in the more recent ease of Panchanan Das Majumdar v. Kunja Behari Malo 42Ind. Cas. 25 decided, in 1917, held that the Court has no jurisdiction to sell property in execution which has not been duly attached. In that case the decision of their Lordships of the Judicial Committee in Raja Thakur Barmha v. Jiban Ram Marwari 21Ind. Cas. 936 : 41 C 690 : 18 CWN 313 :15 MLT 137: 12 ALJ 156 : 19 CLJ 161 : 26 MLT 89 : 16 Bom hB 156 :(1914) MWN 118 : 411 A 38 was relied upon in support of the decision but, as already stated, in my opinion, the decision of the Judicial Committee does not support the proposition there laid down. The High Court of Bombay in the case of Sorabji Coovarji v. Kola Raghunath 12Ind. Cas. 911 : 36 B 156: 13 Bom. LR 1193 has also expressed the view that no sale can take plane without attachment. In that ease before the sale actually took place an appeal against the order for sale made by the Executing Court was preferred to the District Judge. Pending that appeal the property was sold. The District Judge dismissed the appeal but on second appeal to the High Court that Court sat aside the sale considering that property could only be brought to sale after it had been duly attached and whilst it remained under attachment. That case, however, was complicated by the fast that before sale the decretal amount of the attaching decree-holders bad been paid into Court and the property released from attachment but it was ordered nevertheless to be sold at the instance of other judgment-creditors who applied for rateable distribution of the money paid into Court and a further sale of the property which had been released but not re attached. In so far as that case and the later decision of the Calcutta High Court in Panchanan Das Majumdar v. Kunja Behari Malo 42Ind. Cas. 259 differ from the earlier decisions of the Calcutta High Court and the decisions of the Allahabad High Court already referred to, I prefer to follow the latter, which, in my view, express the correct principle. In my opinion this appeal should be allowed with costs hare and in each of the Courts below and the order of the Sub-Divisional Officer rejecting the judgment-debtors objection and affirming the sale should be restored.

Mullick, J.

12. I agree.