The main legal point established in the judgment is that a sale conducted in violation of a subsisting order of attachment or injunction is invalid, and the order of attachment remains effective, valid, and subsisting.

SANJIB BANERJEE, J.

1. The appeal arises out of the rejection of a petition that was originally fashioned as one under Section 47 of the Code of Civil Procedure, but was later required to be regarded as one under Order XXI Rule 58 thereof.

2. The property in question is the land and buildings used as a cold storage and is in Village Baikunthapur, P.O. Sankarpur, P.S. Daspur, District Paschim Medinipur.

3. The appellant herein instituted a money suit in the year 2003 in a court in Ghatal, claiming a principal sum of Rs. 70,96,857.90/-. The claim was on account of the balance dues for the construction of the cold storage and ancillary works. The plaint relating to the suit included a schedule describing the cold storage and the land relating thereto. Such suit was decreed on October 12, 2004 on the following lines:

“That the suit be and the same is decreed ex-parte in part with cost against the defendants. The plaintiff do get a decree for Rs. 70,96,857.90p against the defendants together with interest from 20.01.2003 till the date of realisation over the said amount at the rate of 6% per annum. The defendants are directed to repay the decretal amount with interest within four months from this date. The defendants are permanently restrained from transferring the ‘A’ schedule suit store to third party till realisation of the decretal amount in full and that the sum of Rs. 86,275.00 to be paid by the Defendant to the plaintiff on account of the costs of this suit, with interest thereon at the rate of Nil percent per annum from this date to date of realization.......”

4. Execution proceedings were levied early in 2005. In the tabular statement filed to launch the execution, it was indicated that the manner of execution should be by attaching the relevant property.

5. Order No. 12 passed on April 6, 2006 in M. Ex. 1/2005 recorded as follows:

“Dhr. files hazira through Ld. Advocate. It appears from the case record that the writ of attachment has already been filed. Issue the same at once fixing 7/6/06 for execution report. Office to comply the same.”

6. On September 11, 2006, Order No. 16 was passed in the execution case:

“Dhr. files hazira through Ld. Advocate.

Writ of attachment is received after execution. It appears from the execution report filed by the P.S Sk. Fayez Ahamed that the writ of attachment served upon Jdr. by beating drums along with witnesses. Let the execution report be kept with the record.

Hd. Ld. Advocate for the Dhr.

Hence, it is.

Ordered

That the execution case be and the same is disposed off an full satisfaction of the claim.

Issue pay voucher in favour of process server namely Sk. Payel Ali amounting to Rs. 50/- towards drams which was deposited vide P. cash receipt No. 18 dated 28.07.06.

Later

As the property in question has already been attached by the order of the Court. Now before sale the public action attached property is to be heard first.

Accordingly notice is to be appear judgment debtor whether they have any objection if the attach property in put sale public action.

To

27.09.06 for S.R.

Dhr. is directed to take steps at once.”

7. On December 12, 2006, the judgment-debtors entered appearance in the execution and sought time for filing a written objection. For nearly a year thereafter, the written objection was not forthcoming from the judgment-debtors and, on August 29, 2007, the matter was taken up for issuance of a writ of proclamation for sale of the property to realise the decretal debt. The executing court found that a writ of proclamation of attachment had already been issued and served by beating of drums in the presence of witnesses and observed that the process of attachment of the immovable property had been completed. The writ of proclamation of sale was directed to be issued under Order XXI Rule 66 of the Code and the Nazir was directed to take appropriate steps. The sale proclamation was directed to be published in newspapers, including in the Anandabazar Patrika. An order of December 4, 2007 reco