No sale of property without an order for attachment.

This appeal arises from the Judgment and Decree of the learned District Judge of Coimbatore reversing that of the District Munsif of Coimbatore dismissing an execution petition. The facts are these:

The respondent, the decree-holder, obtained a money decree against one Nanjappa Goundan. This decree was passed on 11th December, 1952. While this suit was pending, the sons of Nanjappa Gounder filed a partition suit the preliminary decree in which was passed on 6th December, 1952. It is not clear when this partition suit was filed. According to the learned District Munsif, it was filed on 1st June, 1952, while according to the learned District Judge, it was filed on 21st July 1952 In any event, it is clear that a severance in status among the members of the joint Hindu family composed of Nanjappa Gounder, the judgment-debtor, and his sons had become effective even before the date on which the decree-holder-respondent obtained his money decree against Nanjappa Gounder The respondent filed E.P. No. 201 of 1953 in execution of his money decree. While it was pending, the moratorium Acts came into force so that the execution petition was closed on 9th January, 1954. The Court made a specific order directing the attachment to subsist for one year from that date, that is up to 9th January, 1955. At this stage it may be mentioned that the decree-holder had obtained an attachment before judgment of the entire family properties It was that attachment which was subsisting on the date of the filing of E.P. No. 201 of 1953 which was directed to continue for one year from 9th January, 1954.

The execution leading to the present appeal is E.P No. 436 of 1958. It was filed long after 9th January, 1955 up to which date alone the attachment was directed to subsist by the order made in E.P. No. 201 of 1953.

It would appear that in or about December, 1954 the judgment-debtor Nanjappa Gounder had been adjudicated an insolvent. Apparently, the one-third share of the family properties belonging to the insolvent which vested in the Official Receiver was sold by him in auction and the respondent-decree holder himself became the purchaser. The present execution E.P. No. 436 of 1958 sought to brine to sale the remaining two-third share of the family properties belonging to the tons of Nanjappa Gounder. The objections raised by them which are now material were that the properties could not be brought to sale without attaching them the earlier attachment before judgment having expired by 9th January, 1955 and secondly, since the sons had become divided even before the date of the decree which was obtained against the father alone, it is not open to the decreeholder to proceed against the son’s shares in execution and that his recourse should be only by way of suit.

The learned District Munsif accepted these contentions and dismissed the execution petition. An appeal was taken to the learned District Judge of Coimbatore who came to the conclusion that since the Execution Petition No. 201 of 1953 had only been closed for “statistical” purposes, notwithstanding the further direction of the Court that the attachment should subsist only for one year from 9th January, 1954, on the revival of the execution petition, the attachment also should have been deemed to have been revived. He thought that a fresh attachment of the property was not necessary. On the other objection, he took the view that by reason of the attachment before judgment, which was of entirety of the family property, the sons should be deemed to have been prohibited from dealing with the property, as an attachment interdicts alienation. He thought that a partition amounts to alienation, or conveyance and that, therefore, even a partition should have been deemed to have been prohibited without the claim under the attachment being provided for. On this reasoning, he upheld the contention that notwithstanding the partition, the decree-holder was entitled to proceed in execution against the sons’