Straight, J.:— As was explained at the hearing of this reference the question virtually asked us is, whether a sale in execution of a simple money-decree is “de facto” void, where there has been no attachment of the property sold prior thereto.
For the purpose of satisfactorily considering and properly determining this point, it is necessary to turn in the first instance to the provisions of Chapter XIX of the Civil Procedure Code, the heading of which is “Execution of Decrees.” Upon looking into it, the following are the several matters with which it deals:—
A. The Court by which decrees may be executed.
B. Application for execution.
C. Staying execution.
D. Questions for Court executing decree.
E. The mode of executing decrees.
F. Attachment of property.
G. Of sale and delivery of property.
H. Resistance to execution.
I. Of arrest and imprisonment.
Now it is to be observed, in the first place, that the sections of Chapter XIX, containing the directions as to attachment of property, are treated as having a direct connection with the execution of decrees, that they immediately follow the provisions as to the “mode of executing decrees,” and directly precede those regarding “sale and delivery of property.” In fact, if their position in the Code is any guide or criterion, attachment, save in those cases where it is obviously unnecessary or inappropriate, to which reference more particularly will presently be made, would seem to be an essential incident and preliminary to execution-sale under a simple money-decree. Moreover, as was pointed out at the hearing, it is incredible that the legislative authorities should have been at the pains to elaborate a long series of sections relating to attachment, if their application was to be left at the option of holders of simple decrees for money, who might or might not apply them according to their own particular fancy. That sale without attachment in their case was not contemplated by the framers of the Code, seems to be borne out upon reference to the forms to be found in the fourth schedule, more particularly ta No. 145, entitled “Warrant of Sale of Property in execution of Decree,” in which it is significant to notice that the direction to the bailiff is to sell the “property, attached under a warrant of this Court, & c.”
It will be convenient, however, to turn to s. 235 of the Code itself, which sets forth the particulars that an application for execution is required to contain. We may pass by the earlier clauses of it and come to (j), which deals with “the mode in which the assistance of the Court is required.” As to this, the decree-holder is to state whether he seeks delivery of the property specifically decreed, or the arrest and imprisonment of the judgment-debtor, or the attachment of his property, or other assistance which the nature of the relief sought may require.
As to the first of these, that obviously relates to decrees directing the delivery of specific immoveable or moveable property, as mentioned in ss. 207 and, 208, execution of which is in terms provided for by ss. 263, 264 and 269, and where attachment is obviously unnecessary, either before or after judgment.
With regard to the second head, namely, “arrest and imprisonment of judgment-debtors,” the procedure relating thereto is regulated by Part 1, of Chapter XIX. It is also to be noticed in passing, that not only may a judgment-debtor, arrested in execution of a simple money-decree, apply to be declared an insolvent under Chapter XX, but by the new Code he his empowered to do so when an order of attachment of his property has been made in execution of such a decree. The holder of a simple decree for money besides being entitled to ask for the arrest and imprisonment of his judgment-debtor, may enforce it by the attachment and sale of his property as well (s. 254), though the Court “may in its discretion refuse execution at the same time against person and property” (s. 230).
The third head “attachment of property” is, as already re-marked, fully provided for in Part 1 of Chapter XIX, to which we will revert later on.
The fourth branch “other assistance which the nature of the relief sought may require” is obviously intended to cover decrees of the kind mentioned in ss. 255, 256, 259, 260, 261, and others in cases where some peculiar exceptional form of relief has been asked and granted.
It will thus be seen that in s. 235, which regulates the first stage in execution, namely, the contents of the application to execute, no mention is made of sale, but only of attachment. The reason of this would seem to be, that application to execute is one thing, ordering sale another, and that while in cases falling under heads 1, 2, and 4, attachment is not an essential preliminary, in others it is, as enabling the Court to ascertain what property the judgment-debtor has available for execution before or during sale, and without it the gravest inconvenience and confusion would arise both to the decree-holders and the judgment debtors. It should also be noticed that the holder of a decree for money applying for attachment must be careful to follow the directions contained in ss. 236, 237 and 238, unless the property be moveables in the possession of the judgment-debtor, when attachment is to be made by actual seizure (s. 269). For by s. 215, which is the first of those in Part E. of Chapter XIX relating to the “mode of executing decrees,” it is provided that “the Court, on receiving an application for execution of a decree, shall ascertain whether such of the requirements of ss. 235, 236, 237 and 238 as may be applicable to the case have been complied with.” If they have not, the application today be rejected, or amended then and there or within a fixed time. If the application is admitted, the execution is to be, ordered in the manner; prayed, “provided that, is the case of a decree for money the value of the property attached shall, as nearly as may be, correspond with the amount for which the decree has been made.” When we look to the provisions of Part F of Chapter XIX, we find that as in s. 254 the expression used is, “by the attachment and sale of his property” so s. 266 declares what property of a judgment-debtor is” liable to attachment and sale” in execution of decree.
Again, in s. 255, with respect to mesne profits subsequently to be ascertained the expression is to be found, “property may be attached as in the case of an ordinary decree for money.” It is unnecessary to travel at length through the several modes provided for the attachment of the various descriptions of property available, to execution, or the sections making special provision for objections to attachment and the procedure to be taken thereon; though as to these latter it may be remarked that, if attachment is unnecessary in execution of simple money-decrees, a non-attaching decree-holder may bring to sale property not belonging to his judgment-debtor, or in which his right is charged or limited, without those who are interested in it having an opportunity of being heard at the preliminary stage of attachment, and may thus escape the operations of ss. 278, 279, 280, 281 and 282. But it is further to be remarked, that the only section of the Code which in terms confers on the Courts the power to order sale is s. 284—” any Court may order that any property which has been attached, & c. shall be sold.”
It was much pressed upon us in the course of the argument, that the provisions as to attachment are made in the interest, of the decree-holder, who by resorting to them renders subsequent private alienations of his judgment-debtor invalid against all claims enforceable under his attachment. No doubt he does obtain this advantage, though s. 276 is rather a prohibition at the instance of the Court executing the decree to the judgment dubtor, forbidding him to do certain acts in contempt of its order and authority. Beyond this it is difficult to see what the holder of a simple money-decree gains by attachment, for while he is liable to have his proceedings in execution delayed or stopped by objections taken under s. 278, he is, when sale has taken place, in no better position, as to the distribution of the proceeds, than other holders of simple decrees for motley who have not actually attached, but who have applied to the Court holding the assets of such sale, prior to their realization, for execution of their decrees. Whatever may have been the superior advantages of the first attaching decree-holder under Act VIII of 1859, they have now been entirely swept away and it comes to this, that while by the proviso to s. 245 he is only allowed to attach property of a value that, as nearly as may be, corresponds with the amount of his simple money-decree, when he has brought it to sale after so attaching it he must share and share alike with other money decree-holders, who have made no attachment, if they have satisfied the requirements of s. 295 of the present Code by making applications for execution.
It was argued that if, under s. 311, a sale of immoveable property may only be set aside, or, in other words, is voidable only where there had been material irregularity in the publishing and conducting it, producing substantial injury to the judgment-debtor, it is taking a great leap to hold that, by reason of the absence of attachment, it becomes “de facts” void. We do not feel the force of this contention; on the contrary, it seems to us that if mere formal irregularities in publication or conduct of sales afford ground for setting such sales aside, ‘a fortiori’ the failure to make attachment, which goes to the very root of the power of the Court to order sale under a simple money-decree at all, is a fatal defect that of itself invalidates the sale. Looking to the plain language of s. 254,” attachment and sale of his property in manner herein-after provided,” and to the other provisions in Chapter XIX, to which attention has been directed, we have no hesitation in answering this reference by saying, that a regularly perfected attachment is an essential preliminary to sales in execution of simple decrees for money, and that where there has been no such attachment, any sale that may have taken place is not simply voidable but “de facto” void.