Consequence of dismissal varies according to the circumstances of the order passed.

1. This second appeal raises two questions arising under the execution chapter of the Civil Procedure Code.—(i) construction and application of Or. 21, R. 57 (1); and (ii) construction of an order passed by an Executing Court dismissing an execution petition under that Rule on account of the default of the decree-holder. These two questions have arisen as between the appellant and the first respondent. Both are court auction purchasers of the self-same item of property belonging to same individual. They purchased the property at different times, in execution of different decrees against the same judgment-debtor. As between the two court auction sales, that in which the appellant purchased the property was prior in point of time. Although this was so in fact, the first respondent asserted his title as a purchaser under the subsequent court auction purchase on the score that the earlier auction sale in appellants favour was void. Both the Courts below accepted this contention and upheld the first respondents title to the property as against the appellants claim.

2. The question in this second appeal in whether the Courts below were right in holding that the earlier execution sale iy which the appellant purchased the property was an invalid sale. To consider this question some further facts relating to this court auction sale would be in point. This auction sale was held in execution of a small cause decree, dated 6th June, 1966 in S.C. No. 213 of 1966. On 28th March, 1967, the decree-holder in that suit filed E.P. No. 183 of 1967 for attachment and sale of the judgment-debtors one-third share in the suit property. Attachment of the property was actually effected in the said execution petition on 28th March, 1967. On 14th August, 1967, the Court ordered the decree-holder to file batta and sale papers within one week, and posted the execution petition for further hearing to 7th October, 1967. On 7th October, 1967, the Executing Court passed the following order:—

“Sale warrant batta not paid. Execution petition dismissed. Attachment to continue for three months.”

With E.P. No. 183 of 1967 disposed of thus, the decree-holder later filed E.P. 1074 of 1967. In that execution petition the Court straightway ordered sale of the property on 12th January, 1968. Pursuant to this order the property was actually brought to sale on 6th March, 1968, It was in this court sale that the appellant purchased the property;

3. In the Courts below, it was urged on behalf of the first respondent that when the previous E.P. 183 of 1967 was dismissed for default of the decree-holder, that order of dismissal had the effect of cancelling the subsisting attachment over the property, and when, in the subsequent E.P. No 1074 of 1967 the Court ordered sale of the property it did so without there being in existence a prior attachment of the property. It was accordingly urged by the first respondent that the sale in favour of the appellant pursuant to the order in E P. No. 1074 of 1967 was invalid. Both the Courts below accepted this contention of the first respondent and held that the appellant did not obtain any title to the property in his court auction purchase in execution of the decree in S.C. 213 of 1966.

4. Before me, learned counsel for the appellant submitted that the sale ordered by the Executing Court in E.P. No. 1074 of 1967 was a perfectly valid order, since, according to him, the property was under attachment pursuant to a valid order under the earlier execution petition, and this attachment was subsisting both when the subsequent E.P. 1074 of 1967 was filed and when in that subsequent execution petition an order for sale was passed. He relied on the terms of the order passed by the Executing Court on 7th October, 1967, in the earlier E.P. 183 of 1967, wherein the Court had clearly directed the attachment to continue for three months from the date of the said order.

5. Learned counsel for the first respondent, on the other hand, urged that