- (1.) It appears from the facta found by the Judge that the plaintiffs (respondents) sued for possession, after foreclosure, of certain estates, including, among others, one called Moramin. The plaintiffs' mortgage bears date the 3rd of January 1863. The appellants resist the plaintiffs' claim, on the ground that, prior to the 3rd of January, that is to say on the 28th of March 1862, the property had been attached by one Karu Sing, who held a decree against the mortgagors; and that the appellants became the purchasers of the property at a sale, which was held in execution of that decree on the 3rd of November 1863. The contention is that the mortgage to the plaintiffs is void as against the appellants because made at a time when the property was under attachment. After the attachment of the 28th March, 1862, i.e., upon the 18th July 1862, the judgment-debtors applied for a review of judgment. This application remained undisposed of until the 28th of April 1863, when it was rejected. After that, on the 3rd of September 1863, the decree-holder caused the property to be again attached. On the 3rd of the following month of November the sale took place and the appellants were declared the purchasers. The Subordinate Judge says, that "the first attachment seems to have been made null and void by a subsequent attachment of the same property by the same decree-holder dated 30th September 1863. It is evident, from the last process of attachment, that the first attachment was withdrawn in consequence of the execution of decree case being struck off the file. Otherwise there is no other way of accounting for the issue of the second attachment."
(2.) Mr. Madocks, the Judge of Bhagulpore, before whom the case came on appeal, says:--"In appeal, it is contended, that as the first attachment was never raised, it was still in force when the deed of sale was executed. I am of opinion that the first attachment was extinguished, 1stly, by lapse of time; 2ndly by the case being struck off the file as admitted by the pleaders. Were the appellant's contention good, it would be equivalent to saying that an attachment can subsist for eighteen mouths, notwithstanding the execution case may have been struck off the file in the interim. There is no necessity for a special order for raising an attachment; it appears to me, if property is attached and no further steps are taken on the attachment within a reasonable period, that the attachment would be void as against third parties, even if the execution case was from any oversight or error not struck off the file. But when it is so struck off, and a party has shown by his own acts he deemed a second attachment necessary, there cannot, it appears to me, be any doubt about an attachment, which was effected eighteen months previously and on which no further steps had been taken in furtherance of the sale, being null and void. The appeal is therefore dismissed with costs."
(3.) There is much in this judgment in which I cannot concur. I know of no reason why an attachment should not subsist for eighteen months, whether that which is called "the execution case" has or has not been struck off the file in the interim, unless the attachment has been withdrawn or set aside in such manner as the law provides. It appears to me to be clear that if property is once attached, the attachment will subsist, if not expressly abandoned by the party at whose suit it was issued, until an order is issued for its withdrawal, even although no further steps are taken on the attachment within a reasonable period.;