The main legal point established in the judgment is the inherent power of the Collector to restore proceedings and revive attachment under Section 151, Civil P.C., in cases of dismissal of application for execution.

Hidayatullah, J—This is a second appeal from the judgment and decree of Mr. V.N. Deo, District Judge, Raipur, in civil Appeal No. 30-A of 1940 decided on 22nd February 1941, reversing the judgment and decree of the trial Courts.

2. The appellants are the three sons of one Bisram Prasad, who had obtained a decree for Rs. 2240 in civil Suit No. 37 of 1932 of the Court of Subordinate Judge, 2nd class, Dhamtari against Dukhuprasad (defendant 4) and during the pendency of the suit Bisram Prasad had attached before judgment Dukhuprasad's 0.19 shares in mauzas Bagtarai, Dubchera, Tengna and Ruputola. These attachments were effected on the following dates:

Baghtarai on 31-1-1932 Dubchera on 1-2-1932 Barpara Tengna on 2-2-1932 and Ruputola on 2-2-1932.

3. A 'c' form was then sent to the Collector for execution of the decree and it was received by him on 8th August 1932.

4. Meanwhile on 7th July 1932, Bansinath Sao and his nine sons partitioned the property by a registered-deed Ex. P-5, and allotted the share in these villages to the plaintiffs while Dukhuprasad was allotted 0-7-0 share in mauza Baliyara, tahsil Dhamtari. The Collector proceeded with the 'c' Form which was received by him on 8th August 1932 and in Revenue case No. 31/145 of 1932-33 relating to Dawoolal v. Dukhuprasad he ordered the sale of these properties and the sale was held at Balod tahsil on 30th November 1939 and on 13th January 1940 the sale was confirmed. On 3rd February 1940 the plaintiffs brought this suit for declaration that the 0-1-9 shares in the four villages were not liable to attachment and sale in the decree against defendant 4 obtained by defendants 1.3 in Civil Suit No. 37 of 1932.

5. The plaintiffs inter alia contended that on 21st January 1933, and again on 2nd March 1935 the Collector had dismissed the case in default and that the attachment came to an end by operation of law under Order 21, Rule 57, Civil P.C., and that the Collector was also incompetent to restore the case to the file as he was functus officio. It was urged that the dismissal of the execution had the effect of bringing the attachment to an end and even if the Collector could restore the case to the file (which was denied) the restoration did not have the effect of restoring the attachment. The trial Court found against the plaintiffs. The lower appellate Court found in favour of the plaintiffs giving the following reasons:

(i) The attachment had ceased to subsist on 21st January 1933 when the execution case was dismissed in default for the first time by the Collector.

(ii) As the subsequent order restoring the case was illegal it could not revive the attachment. The proper course for the decree-holder would have been to re-attach the property.

(iii) The sale which was ultimately held by the Collector was not in pursuance of the attachment which was made before the partition.

(iv) That the case was dismissed in default for the second time on 2nd March 1935 and if it be held that the restoration amounted to re-attachment of property, the sale that was ultimately held was in pursuance of this subsequent attachment and it could not therefore invalidate the partition of the year 1932. In appeal only these points are raised and it is contended that the learned lower appellate Court was wrong in its statement of law.

6. The subject is connected with the powers of the Collector vis-a-vis the powers of the executing Court. Mr. Bobde points out that under Section 70(1)(b), Civil P.C. the Provincial Government is authorised to confer upon the Collector...all or any of the powers which the Court might exercise in the execution of the decree if the execution thereof had not been transferred to the Collector and that the Provincial Government has framed Rule 12 in Revenue Book Circulars III-8 (C.P. Revenue Manual vol. II p. 171), investing the Deputy Commissioners, etc., with these powers. Mr. Bobde, therefore, argues that if the Collector could dismiss an application he would also have the pow