The sale of property by a Court executing a decree is validated under Section 63 of the Civil Procedure Code, and a representative of the judgment-debtor is entitled to apply to the Court to stop the sale under Section 47 of the Civil Procedure Code.

Krishnan, J.

1. In this case a somewhat novel point arises for decision. There was a decree in the District Munsifs Court against one Bole Reddi and another. The property in question here was attached in execution of that decree. The property had also been already attached by an order of attachment before judgment by the Subordinate Judge of Coimbatore. The Subordinate Judge has passed a decree in his suit and the attachment before judgment took effect as an attachment after decree. The property was sold by the District Munsif in execution of the decree in his Court, and has been purchased by the appellant before us. Subsequently the decree-holder in the Subordinate Judges Court applied to the Subordinate Judge to have the property sold in execution of his decree. Thereupon the appellant here put in a petition to the Subordinate Judge asking that the property should not be sold in execution of his Court decree as it was no longer the property of the judgment-debtor, the title to the property having passed to him by his purchase in the execution of the Munsifs Court decree. The Subordinate Judge rejected this application as being an incompetent application altogether. The appeal is against that order. The Subordinate Judge rightly remarks that the application cannot be treated as an application under Order 21, Rule 58, C.P.C. for that rule is only applicable only when the objection taken is that the property attached is not liable to attachment. In this case, at the time the Subordinate Judge attached the property, it was still the property of the judgment-debtor and no objection could have been raised to the attachment when it was put on the property. The Subordinate Judge then proceeds to say in his order that the present application is not one contemplated by any, provision of the Civil Procedure Code and he dismisses it on that ground. We are unable to agree with him. He has quoted the ruling in Mahadeo Lal v. Darsan Gope (1911) 15 CWN 542 as an authority for his position. In that case one of the decrees in execution was a mortgage decree which did not require any attachment to be put on the property. Here we have a case where two Courts have attached the same property in execution of money decrees in each Court. This is a case which falls under Section 63 of the Civil Procedure Code. Ordinarily under Clause (1) the Court which should have realized or received such property and determined any claim thereto or any objection to the attachment thereof was the Court of the highest grade, i.e., the Subordinate Judges Court. But for some reason not clear on the record, it was the Munsif that caused the sale of the property and not the Subordinate Judge. Clause (2), which has been newly introduced in Section 63 says, " Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees." It would follow from this clause that the sale by the Munsif in execution of his decree was not invalidated by the fact that the property was under attachment by the Subordinate Judge. The section clearly validates such sales. There was a considerable difference of opinion at one time as to the result of two Courts attaching a property and each selling it itself. It was first held in Madras that the sale of the superior Court even if later in time prevailed and passed the title of the property, the sale by the inferior Court being invalidated. Vide Muthukaruppan Chetty v. Muthuramalinga Chetty (1883) ILR 7 M 47. That view was somewhat modified by this High Court in Kunhayan v. Ihukutti (1898) ILR 22 M 295 : 9 MLJ 1, where it was held that the prior sale by the inferior Court would pass title to the property if it had no notice of the proceedings before the superior Court, but if the inferior Court had notice of the proceedings of the superior Court and still proceeded to sell, that sale would be vitiated. The Allahabad High Court seems, to have taken a different view altogether, namely, that t