SHIBNATH SINGH RAY Vs. SABERUDDIN AHMED

JUDGEMENT

(1.) This is a second appeal by defendant 1 from the concurrent decisions of the Subordinate Judge of Nadia and the Munsif of Ranaghat. The plaintiff's suit was for a declaration of title to certain land, for ejectment of defendant 1 and for setting aside the purchase of the suit land by defendant I on 12 May 1922, in execution of a decree against defendant 2. The plaintiff's claim is rested on a prior purchase made by him at a private sale on 29 September 1921, from defendant 2. The question between the parties turns upon whether or not, on the date of the plaintiff's purchase, the property was under attachment. The material dates are as follows: The property was attached before judgment on 10 August 1919; a decree was passed on 10 June 1920; an appeal from the decree was dismissed on 9 February, 1921; the decree-holder applied for execution on 14 June 1921; and took out a fresh attachment on 24 June 1921; this execution proceeding was ultimately dismissed for default on 6 September 1921; another application for execution was made on the 19 of that month.

(2.) This was the position at the date of the plaintiff's purchase. After the plaintiff's purchase, the decree-holder again took out a fresh attachment on 3 December 1921, and the property was ultimately sold to the decree-holder on 12 May 1922. Defendant 1 is the heir of the decree-holder.

(3.) Now the question is whether the attachment before judgment made on 10 August 1919, was subsisting on 29 September 1921 notwithstanding that the application for execution brought on 14 June 1921, had been dismissed for default on 6 September. The Courts below have held that the attachment before judgment had by that time ceased to exist, that there had been a re-attachment on 24 June 1921, which, under Rule 57, Order 21, Civil P.C., came to an end when the application for execution was dismissed on 6 September.