An attachment before judgment to be valid, must be effected in the manner prescribed by Order 21, Rule 54, C.P.C.

VISWANATHA SASTRI, J. :- The legal representatives of the deceased 8th defendant are the appellants from the decree of the Court of the District Judge, Krishna, in O. S. No. 40 of 1948. The suit was for recovery of money due on a mortgage, Ex. A-1 dated 23-7-1934, executed by the 1st defendant in favour of the 1st plaintiff as the manager of joint family. The 8th defendant was the purchaser of a portion of the mortgaged property, namely, items 3 and 5 of schedule A and item 2 of Schedule B, at a Court-sale held on 29-6-1942 in execution of a money decree in O. S. No. 37 of 1933 on the file of the District Court of Krishna.

The 8th defendant pleaded that the mortgage, Ex. A-1, was not enforceable against the properties in his hands for several reasons. He alleged that the mortgage was a sham, unsupported by consideration. He also pleaded that the mortgage was void and unenforceable as against the properties purchased by him, having been executed during the pendency of an attachment before judgment of the properties in O. S No. 37 of 1933 in execution of the decree in which the aforesaid properties were sold by Court on 29-6-1942, he being the purchaser at the Court-sale. He also alleged that the plaintiff was estopped from questioning the validity of the attachment and the Court sale which followed it by reason of certain orders passed against the 1st defendant in O. S. No. 37 of 1933. The Court below overruled these pleas of the 8th defendant and decreed the suit. Before us there was challenge of the finding of the lower Court that the mortgage, Ex. A-1, was supported by consideration.

2. The main question for consideration is the validity of the attachment before judgment purported to have been made in O. S. No. 37 of 1933 on the file of the District Court, Krishna filed by a creditor for recovery of money due from the 1st defendant. Along with the plaint in that suit an application for attachment before judgment of the properties of the 1st defendant including the properties later on mortgaged under Ex. A-1 was made.

The application was numbered as I. A. No. 656 of 1933. On 25-9-33 the Court passed an order on I. A. No. 656 of 1933 in these terms; "Attach and notice to 25-10-1933". The order was made before the first defendant had any notice of the suit or the application for attachment before judgment. The 1st defendant appeared in Court on 25-10-1933 and a few days Inter filed his objections to I. A. No. 656 of 1933. For one reason or other, I. A. 656/33 was not disposed of till 15-10-1934 on which date the order sheet contains the following entry: "The attachment is confirmed. None of the defendants contesting today. The suit also is decreed today".

3. We may refer to the events that happened subsequent to the order dated 25-9-1933 passed in I. A. No. 656 of 1933. A warrant was framed and issued in the terms of Form No. 5 of Appendix P. C.P.C. A notice also in the same terms was issued for service on the defendant, that is to say, in accordance with Form No. 5 of Appendix, P, Civil Procedure Code. The Amin who executed the warrant made a return, Ex. A-2 (a) dated 30-9-1933.

According to the return the Amin attached the property mentioned in the schedule annexed to the warrant, fastened a copy of the property-scheduled and a, copy of the order to a post on the attached property and caused it to be proclaimed by tom-tom that the property under attachment should not thereafter be mortgaged or alienated. He also reported that on 29-3-1933 lie affixed a copy of the order and a copy of the schedule of the property to the notice board of the Court. No further orders were passed by the Court except orders or adjournment of I. A. 658 of 1933, nor were any other steps taken to effect an attachment.

It was only on 15-10-1934 that the Court passed an order confirming the attachment and decreeing the suit. The mortgage, Ex. A-1, was executed by the 1st defendant on 23-7-1934. The properties mortgaged were later on sold by the Cour