The dismissal of an application for execution is necessary for a pending attachment to cease, and a sale deed executed during a subsisting attachment may be deemed void and inoperative against the attachment.

Venkataramana Rao, J.

1. This second appeal arises out of a suit filed under Order 21, Rule 63, Civil P.C., by the plaintiffs for a declaration that they are entitled to sell the properties in suit in execution of a decree obtained by them in O.S. No. 371 of 1919 on the file of the District Munsif of Valangiman against defendant 2s father and that the deed of sale executed by defendant 2s mother as guardian dated 17th August 1927 in favour of defendant 1 is a sham and nominal transaction executed with a view to defeat and defraud their rights. The plaintiffs also attacked the deed on the ground that it was executed during the pendency of a subsisting attachment issued in execution of their decree. The sale deed in favour of defendant 1 was for a sum of Rs. 8000, part thereof, namely, Rs. 6500 represented the amount due under a mortgage in his favour, dated 25th October 1921, executed by defendant 2s father and the balance Rs. 1500 represented in part the amount due under a promissory note dated 7th November 1921, also executed in his favour by defendant 2s father. Both the lower Courts took the view that the alienation was not invalid on the ground that it was made during the pendency of a subsisting attachment but they differed on the question whether the sale deed was executed in order to defraud the plaintiffs rights. The learned District Munsif took the view that it was a sham and nominal transaction, but the learned Subordinate Judge held that it was a bona fide transaction intended to pass title.

2. This appeal is by the plaintiffs and Mr. Venkatarama Iyer on their behalf urged before me two contentions, viz., (1) that the deed of sale is void having been executed during the pendency of a subsisting attachment, and (2) that it was executed in order to defeat and defraud the plaintiffs rights. If the first contention is answered in plaintiffs favour, it would be unnecessary to go into the other. I therefore propose to deal with the first contention. A few facts are necessary to appreciate it. On 16th September 1923 plaintiffs filed an application (E.P. No. 559 of 1923) and obtained an order for attachment of the suit properties. Then they obtained an order for sale and the date of the sale was fixed for 14th February 1924, but later adjourned to 29th March 1924. Defendant 2 filed a suit against his father Venkata Reddi for partition and in that suit he obtained an injunction for stay of execution of the said decree. The sale was accordingly not held and that fact was recorded in E.P. No. 559 of 1923. But the execution application was pending and no final orders were passed thereon. The suifc filed by defendant 2 was dismissed on 9th November 1925. After the dismissal of that suit, the plaintiffs filed an application, E.P. No. 222 of 1928, wherein they prayed that defendant 2 might be brought on record as the legal representative of his father Venkata Reddi who has since died and also that the properties already attached in E.P. No. 559 of 1923 and ordered to be sold might again be ordered to be sold without the necessity of a fresh attachment, but the application was dismissed for default on 12th November 1928. The plaintiffs then filed a third application (E.P. No. 320 of 1930) wherein they prayed that the immovable properties already mentioned in E.P. No. 559 of 1923 might again be attached and the property directed to be sold. They were accordingly attached and directed to be sold on 7th April 1930. Defendant 1 preferred a claim petition and it was allowed. Hence this suit. It will be seen that the sale deed was executed on 17th August 1927 before the dismissal of E.P. No. 222 of 1928. It is conceded that on the date of the sale the attachment which was made in pursuance of the order made on E.P. No. 559 of 1923 was subsisting, but it is contended that by reason of the dismissal of the application (E.P. No. 222 of 1928), the attachment ceased and therefore the sale must be deemed to be valid. Both the lower Court