Parties may waive the advantage of provisions made to protect their own interest but not of those made to protect the interest of others or of the public.

Pan Dalal, J.

1. This is a second appeal by the judgment-debtor whose application E.A. 72 of 1925 dated 15th January 1925 praying that the decree-holders execution application E.P. 543 of 1923 dated 7th December 1923 in execution of the decree in O.S. No. 676 of 1922 should be dismissed was itself dismissed by both the lower Courts. A preliminary objection to the second appeal was taken that no second appeal lies under Section 102, Civil P. C, as the decree in O.S. No. 676 of 1922 was of a small cause nature and the value of the subject-matter was less than Rs. 500. The appellants advocate does not contest this objection which must prevail.

2. As he has also filed a revision petition against the order of the lower Courts I proceed to dispose of it. In substance the petitioners (judgment-debtors) objection in the lower Courts was that the decree-holder was proceeding to get his property brought to sale in the absence of a subsisting attachment and that this irregularity-should be stopped. The District Munsif did not enter into the merits of the objection but held that the form of the petitioners-application (E.A. 72 of 1925) which in terms asked that another application E.P. 543 of 1923 should be dismissed was obnoxious to Rules 67 and 176, Civil Rules of Practice, which forbid applications with that form of prayer. He was also of opinion that the objection did not fall within Section 47, Civil P.C, as it related only to procedure and not to the rights of the parties. On appeal the learned Subordinate Judge upheld the Munsiffs order but supported it on additional grounds, i.e., that the question of attachment or no attachment was res judicata and that the petitioner was estopped by his conduct from raising it.

3. As to the formal objections based on Rules 67 and 176, Civil Rules of Practice, there is a substantive grievance raised by the petition and if it is true the fact that its redress was not sought in more act language than that adopted, which was perfectly easy to adopt, need not stand in the way of that redress. Then as to the point that the objection was not one cognizable under Section 47, Civil P. C, it is ingenious but unsound.

4. What is said is that insisting on proper procedure being adopted for selling property in execution is raising a question not relating to execution, discharge or satisfaction of the decree; but only to procedure. The answer is that an objection at) to the defect or absence of the necessary attachment of the property sold in execution comes within the provisions of Section 47: Ma Pwa v. Mahomed Thambi A.I.R. 1924 Rang. 124.

5. The substantive grounds of res judicata and estoppel remain. To understand how these arise the following facts and dates are necessary. The decree was passed on 8th December 1923. In pursuance of an application for execution E.P. No. 434 of 1923 certain properties of the judgment-debtor were actually attached on 5th August 1923. In spite of this, the judgment-debtor on 10th August 1923 executed a mortgage of the attached property which would be invalid against all claims enforceable under that attachment (Section 64). On 17th September 1923 the decree-holder applied for sale of the attached properties and the matter was posted for 1st December 1923 for filing sale papers and encumbrance certificate. As those papers were not filed the Munsif on that day dismissed the application but added "attachment to be pending for two months." Under Order 21, Rule 57 the Court could in such circumstances have adjourned the application if it thought that dismissal of the application was too severe a penalty for not producing the papers. But if the Court found it unable to proceed on account of the decree-holders default and was unwilling to adjourn the matter and dismissed the application, the legal consequence was that the attachment ceased to exist, in spite of the order that it should remain in force Namuna Bibi v. Rosha Miah [1911] 38 Cal. 482.

6. I cannot help thinking that th