Madgavkar, J.:—
This is an appeal under the Letters Patent against the judgment of Mr. Justice Baker, reversing the decree of the two Courts below and dismissing the plaintiff's suit with costs. The question in both the appeals is whether the attachment of the defendants-respondents was subsisting on the date of the purchase by the plaintiff-appellant from the judgment-debtor. The property in all comprised twelve survey numbers. Out of these, a third party had obtained a decree and attachment in respect of seven. The defendants-respondents had obtained attachment before judgment in respect of twelve survey numbers in a suit, which ended in a decree in their favour in 1906. In 1909 the other decree-holder Dattatraya had applied to attach and sell seven out of the survey numbers, and by Darkhast No. 49 of 1909 by the defendants in execution of this decree the respondents applied for two reliefs, firstly, for rateable distribution under section 73, Civil Procedure Code, in respect of the seven properties attached which formed the subject-matter of the application by Dattatraya, and, secondly, for attachment and sale of the moveable properties of the judgment-debtor. The former relief he obtained but not the latter as process was not paid. By Darkhast No. 240 of 1913 on April 12, 1913, he again applied for attachment and sale of the moveable properties. No process was paid and that Darkhast was dismissed for default. Subsequently the plaintiff purchased the remaining five properties. In 1916 the respondents sought to bring the remaining five attached properties to sale, and the present suit by the plaintiff was for a declaration that these properties were not liable to be sold in execution of the decree in favour of the respondents on the ground that the respondents' attachment before judgment ceased under Order XXI, rule 57, Civil Procedure Code, on the dismissal of their two Darkhasts of 1909 and 1913. The plaintiff-appellant's contention was upheld by the two lower Courts, which held that the defendants-respondents' attachment before judgment was not subsisting on the date of the plaintiff-appellant's purchase but had ended under Order XXI, rule 57, Civil Procedure Code. Baker, J. in appeal came to a different conclusion on the ground that there had been no application by the respondents for sale of the five out of the twelve properties attached, and Order XXI, rule 57, Civil Procedure Code, therefore, had no application and the attachment therefore subsisted.
It is argued for the appellant that as held by me sitting singly in Ardeshir v. Usman Gani,(1) Order XXI, rule 57, applies to property attached before judgment no less than to property attached in execution after judgment, and that the sentence is not limited to an application for execution by sale of the attached properties but that an application for execution in any of the modes allowed by the Code suffices, and if any such application is dismissed by reason of the decree-holders' default, the attachment, that is to say, the entire attachment of all the properties attached even before judgment ceases. Reliance is placed for this contention on the decision of the majority of the Full Bench of the Madras High Court in Meyyappa Chettiar v. Chidambaram Chettiar, followed by this Court in Ardeshir v. Usman Gani.(2)
For the respondents reliance is placed on a decision not referred to in Ardeshir v. Usman Gani, Shibnath Singh Ray v. Sheikh Saberuddin Ahmed,(3) which follows the view of the minority of the Full Bench Madras decision in Meyyappa Chettiar v. Chidambaram Chettiar.(4) It is argued that even on the decision of the majority in the Madras Full Bench case referred to above, Order XXI, rule 57, necessarily pre-supposes, firstly, an application for sale of the attached property, secondly, default on the part of the decree-holder in execution proceedings for such sale, and thirdly, the attachment ceases only in respect of the properties in respect of which execution is sought, and not other properties attached in respect of which execution has not been sought and in respect of which, therefore, necessarily there can be no default. In this case the respondents have never applied themselves for sale of any of the attached property even in respect of the seven survey numbers brought to sale by Dattatraya but merely applied for rateable distribution under section 73, Civil Procedure Code. There was no default on their part in the first Darkhast of 1909, and the second Darkhast of 1913 was only for sale of the moveable property and Order XXI, rule 57, Civil Procedure Code, has therefore no application.
In regard to the construction of Order XXI, rule 57, the argument for the respondents is in our opinion correct. The words of that section “where any property has been attached in execution of a decree” necessarily pre-suppose an application for execution for attachment and sale of the property, and this is made still more clear by the subsequent words in the opening sentence. Similarly, the subsequent word “application” for execution must be taken to imply the same application for execution, viz. by attachment and sale of the property. Where, therefore, as here, there has been no such application for attachment and sale of the property Order XXI, rule 57, has no application. In this view, strictly speaking, it is not necessary for us to consider the further aspect of the case.
At the same time we adhere to the view one of us expressed in Ardeshir v. Usman Gani, based on the decision of the majority in Meyyappa Chettiar v. Chidambaram Chettiar. We are of opinion that by the words “has been attached” the legislature did not intend to exclude property which originally might have been attached before judgment but in respect of which, although no second application to re-attach was necessary by reason of Order XXXVIII, rule 11, Civil Procedure Code, application to sell had been made in execution subsequent to the decree. The reasoning in the Calcutta case, if we may say so with all respect, is not convincing. The reasons of the legislature for the addition of this new rule to the Code of 1908 hold equally good in the case of property attached before judgment. Speaking for myself, I still prefer the reasoning and the conclusion of Couts Trotter, J. and Ramesan, J. in the Full Bench Madras case referred to above to that of Rankins, C.J in Shibnath Singh Ray v. Sheikh Saberuddin Ahmed and of Bohra Akhey Ram v. Basant Lal.
In the present case we are of opinion that the words “attachment shall cease” in the concluding sentence of rule 57 do not mean necessarily attachment of all the properties attached even though they do not form the subject-matter of the application for execution. Attachment merely results in the property remaining in custodia legis. But cases repeatedly occur where one or more out of such properties may be taken away from such custodia legis by order of the Court or by consequence of law; the others so remain under attachment. In the present case, we are of opinion that in the properties with which the present appeal is concerned, the attachment did not cease but subsisted on the date of the plaintiff-appellant's purchase, and his suit therefore fails.
We agree, therefore, with the decision of Mr. Justice Baker and dismiss the appeals with costs.
Appeals dismissed.
B.G.R