Subsistence of attachment before judgment is not a bar to the same property being sold in execution of a decree obtained subsequent to the attachment.

P. CHANDRA REDDY, C. J.

( 1 ) THIS Second Appeal was referred to a Bench by our learned brother, Manoher Pershad J. , on the representation of the counsel on either side that an important question of law is involved in this case.

( 2 ) THE principal question raised by the appeal is whether the subsistence of an attachment before judgment of some property is a bar to the same property being sold in execution of a decree obtained subsequent to the attachment,

( 3 ) THE facts material for the purpose of this enquiry may be shortly related. The appellant filed O. S. No. 89 of 1947 on the file of the District Munsifs Court, Tenali, against respondents 2 and B and attached the property in dispute before judgment. During the pendency of the suit, this very property was brought to sale in execution of an award granted by the Co-operative Deputy Registrar, Vijayavada, in respect of a debt due by the judgment-debtor (2nd respondent) to Chowtapalli Vijayalaxmi Vilas Co-operative Credit Society and was purchased by the first respondent on 27/06/1950. The sale was confirmed on 8/08/1950 and the sale certificate Ex. A. 4, was issued to the court-auction-purchaser on 19/09/1952.

( 4 ) O. S. No. 89 of 1947, the suit filed by the appellant, was decreed, and the subject matter of the appeal was being brought to sale. At that juncture the first respondent intervened with a claim petition (E. A. No. 468 of 1952), under Order 21, Rule 58 C. P. C. It was dismissed on the ground that the property in dispute was attached in 1947 before judgment, that the subsequent sale of that property in favour of the first respondent did not affect the prior attachment and that, therefore, the attachment could not be raised.

( 5 ) THEREUPON, the first respondent laid the action (O. S. No. 319 of 1953 on the file of the District Munsifs Court, Gudivada), which has given rise to this appeal, for declaration of his title to the suit property and for setting aside the Order on the claim petition.

( 6 ) THE suit was resisted on the defence that the sale was a collusive one and that the existence of prior attachment rendered that sale void. Incidentally, it was also pleaded by the first defendant that the plaintiff first respondent could not object to the attachment, as, at the material time, he had no interest in the property.

( 7 ) THE trial court, over-ruling the opposition, decreed the suit. It was held by the District Munsiff that the sale in favour of the first respondent was not vitiated by collusion and it was valid. He also held that Section 64 C. P. C. did not stand in the way of the suit property being brought to sale. No issue was raised as to the effect of attachment of this property in another suit before the sale in question. Nor was this point argued before the trial court or the lower court.

( 8 ) ON appeal the Subordinate Judge confirmed the decree and judgment of the District Munsiff.

( 9 ) AGGRIEVED by this decision, the appellant, i. e. , the decree-holder in O. S. No. 89 of 1947, brought a second appeal to this Court. When it came for hearing before our learned brother, Manohar Pershad, J. , the parties requested the learned Judge to have the matter posted before a Bench urging that an important point of law was involved in the case.

( 10 ) THE only contention urged before us by the learned counsel for the appellant is that the plaintiff-first respondent ought to have been non-suited because no objection to the attachment of the properly could be taken by him, he not having acquired any interest thereon at the relevant time, and as such the claim petition filed by him was rightly dismissed and that the scope of the suit under Order 21, Rule 63, C. P. C. could not be wider than the one under Order 21, Rule 58 C. P. C.

( 11 ) AS we have already remarked, this point was not argued in either of the courts below or even before our learned brother, though this was pleaded in the written statement. But it is unnecessary for us to give any decision on the a

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