Decided on December 16,1938



- (1.)These two appeals raise a similar point of law in execution and it is sufficient to state the facts in appeal No. 517.
(2.)The respondents in the year 1927 obtained a compromise decree against a judgment-debtor for payment of a sum of money and the judgment-debtor consented! to his property being attached. But it is in my opinion quite clear that there never was in fact any attachment. As pointed out by the Privy Council in Muthiah Chetti v. Pdaniappa Chetti, (1928)30BOMLR1353 . an order for attachment is one thing, and attachment another. Here there was no attempt to comply with the provisions of Order XXI, Rule 54, of the Civil Procedure Code Therefore in fact there was no attachment. However, the Court made an order for sale and sent the record to the Collector under Section 68 of the Civil Procedure Code, and the Collector proceeded to sell the properties in dispute, which are three survey numbers., viz., Nos. 7, 89 and 36, to the respondents, and the Mamlatdar thereupon asked the present appellant, who was in possession, to vacate. The appellant declined to vacate and started this suit for an injunction to restrain the respondents from interfering with his possession. The appellant had purported to purchase the suit properties from the judgment-debtor before the date of the sale, but after the record had been sent to the Collector. There having been no attachment of the property, the judgment-debtor prima facie would have been entitled to sell to the appellant. But it is admitted that by reason of paragraph 11 of the Third Schedule to the Civil Procedure Code the judgment-debtor could not convey any title to the property after the record had been sent to the Collector, The case therefore which the appellant makes is that the sale by the Court through the Collector without attachment was a nullity, and therefore the respondents are not entitled to oust him from possession.
(3.)The respondents object that the suit is misconceived, and certainly it is rather a curious form of procedure for a person, who is in possession of land without title and is therefore a trespasser, to try and prevent somebody who claims to be the owner from taking proceedings against him. As a rule the strength of a trespasser lies in defence, and not in offence. However, in this case the Mamlatdar had made a claim against the appellant for possession and he would have had to give up possession or else take some step to regularise his possession. I think, therefore, that he was entitled, in the peculiar circumstances of this case, to apply for an injunction.

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