Attachment before judgment is a self-contained and complete provision under Order 38 of the Civil Procedure Code, 1908, and the provisions of Order 21 relating to attachment in execution proceedings are not applicable to it unless specifically provided.

Headnote:
ATTACHMENT BEFORE JUDGMENT - ATTACHMENT CEASES - ORDER 21 RULE 57 - APPLICABILITY - CIVIL PROCEDURE CODE, 1908 - ORDER 21 RULE 57, ORDER 38 RULE 8, 11 - LIMITATION ACT, 1908 - ARTICLE 11 - ADVERSE POSSESSION - SECTION 64 - SALE IN EXECUTION OF DECREE - SALE WITHOUT ATTACHMENT - SECTION 51 - INTERPRETATION - Order 21 Rule 57 of the Civil Procedure Code, 1908, which provides for the cessation of attachment in execution of a decree upon the dismissal of the Darkhast or application for execution for default of the decree-holder, does not apply to an attachment before judgment. Attachment before judgment is a self-contained and complete provision under Order 38 of the Code, and the provisions of Order 21 relating to attachment in execution proceedings are not applicable to it unless specifically provided. The intention of the Legislature is to safeguard the plaintiff's interest in the property until the decree is satisfied, and there is no reason to hold that an attachment before judgment ceases merely because the decree-holder made some default in the execution proceedings. The view that an attachment before judgment becomes an attachment in execution upon the passing of a decree is not supported by the language of the Code or by sound reasoning. The attachment continues until the decree is satisfied or the attachment is vacated by the Court. The sale of property in execution of a decree without attachment is permissible under Section 51 of the Code, and Order 21 Rule 11 merely provides an exception to the general rule that attachment is necessary for effecting a sale in execution. Adverse possession against a judgment-debtor cannot be claimed by persons who derive their title from the judgment-debtor after the attachment of the property. The sale in execution of the decree is binding on the judgment-debtor and those claiming under him, and the right of the purchaser to recover possession arises from the date of the sale. The limitation period for challenging an order in a claim petition under Article 11 of the Limitation Act, 1908, does not apply to a suit challenging an order in a claim petition where attachment was levied before judgment.
Fact of the Case:

The Plaintiffs purchased certain properties in an execution sale held pursuant to a decree obtained by them against the judgment-debtor Daulat. The properties were attached before judgment in 1924 and the attachment was continued during the course of execution proceedings. Daulat had sold some of the properties to Defendants Nos. 4 and 5 before the attachment, and Defendants Nos. 6, 7, and 8 had purchased other properties from Daulat after the attachment. The Plaintiffs filed a suit for possession of the properties, claiming that the sales to the Defendants were void and inoperative against them as the purchaser in the execution sale. The Defendants contested the suit, claiming that their purchases were valid and that they were holding the properties adversely to the Plaintiffs.
Finding of the Court:

The trial court dismissed the Plaintiffs' suit, holding that the attachment before judgment had ceased to exist due to the dismissal of a Darkhast for default of the decree-holder, and that the sales to the Defendants were, therefore, not affected by the attachment. The Plaintiffs appealed the decision.
Issues: 1. Whether Order 21 Rule 57 of the Civil Procedure Code, 1908, applies to an attachment before judgment. 2. Whether an attachment before judgment ceases upon the dismissal of a Darkhast for default of the decree-holder. 3. Whether the sale of property in execution of a decree without attachment is permissible. 4. Whether adverse possession can be claimed against a judgment-debtor by persons who derive their title from the judgment-debtor after the attachment of the property.
Ratio Decidendi: 1. Order 21 Rule 57 of the Civil Procedure Code, 1908, does not apply to an attachment before judgment. 2. An attachment before judgment does not cease upon the dismissal of a Darkhast for default of the decree-holder. 3. The sale of property in execution of a decree without attachment is permissible under Section 51 of the Code, and Order 21 Rule 11 merely provides an exception to the general rule that attachment is necessary for effecting a sale in execution. 4. Adverse possession against a judgment-debtor cannot be claimed by persons who derive their title from the judgment-debtor after the attachment of the property.
Final Decision: The appeal was allowed. The decree of the trial court was set aside, and the Plaintiffs were granted possession of the properties in the possession of the Defendants. The Defendants were also directed to pay mesne profits for a period of three years before the suit and from the date of the suit till realization.

JUDGMENT - Patel, J.

(1) This is an appeal by the Plaintiffs, whose suit for possession, is dismissed by the Civil of property which was purchased in an execution providing. A few facts, out of which the appeal arises need be stated. The father of Plaintiffs Nos. 1,2 and 3 by name one Baliram Narayan Naik and a coparcener of his, filed a Suit No. 63 of 1924 in the Court of Jalgaon against one Sakharam alias Daulat Ramji Patil and Bhika Ganpat Chaudhari for the recovery of their dues on a Pro-note. Daulat was the son of Keshav and was adopted by his uncle Ramji. The family, however, apparently continued as before, On 24th March, 1924, the Plaintiffs obtained an attachment before judgment and actually levied the attachment. A decree ( Exhibit 227 ) was passed in that suit on 9th July, 1924. By the terms of the decree the attachment before judgment was continued, During the course of years several Darkhasts were filed for execution of the decree. The first Darkhast No. 830 of 1924, was filed on 25th September, 1924. The judgment-debtor paid a sum of Rs. 1,000 and agreed to pay instalments as a result of which the Darkhast was disposed of on 23rd December, 1925. Again by the terms of the order in that Darkhast, the attachment was continued with the consent of the judgment debtor; consent being given by Dagdu Desav, his natural brother an cousin by adoption, As no instalments were paid, a second Darkhast No. 230/31 was filed. It appears that the judgment creditors had not given particulars of the properties which were sought to be sold and they were, therefore, called upon to furnish the same. That is Exhibit 205. The third Darkhast, being Darkhast No. 778/34, was filed on 15th June, 1934, and it was sent to the Collector for execution. The property was ultimately sold on 27th November, 1941, and it was purchased by the decree-holders. The sale certificate in respect of those properties is at Exhibit 225. The properties purchased by the creditors were;

Survey No. 117 : 1 acre 13 Gs. Assessed at Rs. 32 Survey No.3/1: 1 acre 12 Gs. Assessed at Rs. 2/8-, O acres 10 Gs. (Kharaba) Survey No. 86 : 4 acres 18 Gs. Assessed at Rs. 11/15/- survey No.110: 3 acres 6 Gs. Assessed at Rs. 13/4/-.

After the purchase of the properties by the creditors, the judgment-debtor Daulat made an application for setting aside the sale under Order 21 Rule 19 but the application was dismissed for default. The decree-holder then made an application for possession and he was given symbolical possession on 30th April, 1943, as some of the defendants claimed to be possession in their own rights.

(2) Survey Nos. 110, 86 and 3/2 were sold by Daulat to Yadav Ganpat Patyil, father of Defendant No. 4 and his brother Defendent No. 5 who were his maternal uncles in the natural family. These sales were effected by Exhibits 114 and 115 dated 15th June, 1923, and 15th August 1923 before attachment. Defendant No. 6 Daji purchased parts of survey No. 117 by three separate deeds being Exhibits 105 , 106 and 107 D/- 22-5-1933, 16th July, 1931 and 22nd June, 1932. Defendant No. 7 is the nephew of Defendant No. 6 and is jointly interested in those lands with him. Defendant No. 8 purchased part of survey No. 117 by Exhibit 207 dated 31st May, 1933. All these Defendants had raised objections and therefore, the purchaser got only symbolical possession.

(3) The present suit was filed on 26th November, 1953, claiming possession from the Defendants of these various survey numbers. At the date of the suit (Sakharam) Daulat was already dead. The Plaintiff alleged that the sale in favour of Yadav Pati and Vyankat Mayaram Patil is a sham transaction and never intended to operate as a sale, that even after the sale Daulat and his brother continued to remain in possession of the property. At the date of sale as Daulat was dead, his daughters Rambhabai, Sunderabai and Shewantibai were made Defendants Nos. 1 to 3. He also alleged the same infirmity in the other sales and also contended that these s

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Judicial Analysis