- (1.) THIS is an appeal by the defendant Hansraj against the judgment and decree dated 25. 6. 45 of a Division Bench of the High Court of the former State of Bikaner reversing the decree of the trial court in a suit under O. XXI R. 63 of the Code of Civil Procedure. The appeal was originally filed before the Judicial Committee of that State and has been transferred to us for disposal on its integration in the State of Rajasthan.
(2.) THE material facts may be shortly stated as follows : Defendant appellant Hansraj obtained a decree against the defendant respondent Sultan, son of Musta, for a sum of Rs. 3297/8/- in the court of the District Judge, Ganganagar on 30. 1. 41. It is said that Hansraj had obtained an attachment before judgment of some 28 Bighas of land belonging to the judgment-debtor Sultan in Murabba No. 54 Chak 2 D "badi," District Ganganagar. Hansraj in execution of this decree brought the aforesaid land to sale. Respondent Daloo is the auction-purchaser. It so transpired, however, that plaintiff respondents Sultan, Suleman and Ismail sons of Salewara had purchased out of the above-mentioned land, 15i Bighas and 2 Biswas of land from the judgment-debtor Sultan for a sum of Rs. 1000-/ by a sale-deed dated 26. 6. 42. THE vendees thereafter objected to the sale of the land in execution of Hansraj's decree, which objection was dismissed by the executing court. THE plaintiff respondents, therefore, brought a suit in the court of the District Judge, Ganganagar, for a declaration that the 15 odd Bighas of land sold by the judgment-debtor Sultan son of Musta to them were not liable to attachment and sale in execution of Hansraj's decree. THE trial court dismissed the suit. On appeal, a Division Bench of the High Court of the former State of Bikaner set aside the judgment and decree of the trial court and decreed the plaintiff's suit and held that the 15-1/2 Bighas and 2 Biswas of land in Murabba No. 54 Chak 2 D "badi", District Ganganagar, were not liable to attachment and sale in execution of Hansraj's decree against the judgment-debtor Sultan, and consequently set aside the execution sale. THE appellant applied for, and was granted, special leave to appeal to the Judicial Committee of the former State of Bikaner against the judgment and decree of the High Court. THE appeal has now-come before us as already stated above. It has been urged by learned counsel for the appellant that the sale made by the judgment-debtor Sultan in favour of the respondents Sultan Suleman and Ismail was void and of no effect, and, therefore, the decision of the learned Judges of the High Court of Bikaner was erroneous. Learned counsel assails that decision on two grounds. His first ground is that inasmuch as the judgment-debtor's land in suit had been made the subject-matter of an attachment before judgment on 12. 1. 1941, this attachment continued and was operative at the time of the alleged sale in favour of the plaintiff respondents and consequently the sale was void and inoperative. Learned Judges of the High Court of Bikaner found and, in our opinion, rightly, that the defendant-appellant Hansraj had utterly failed to prove that a proper attachment before judgment had been made in respect of the land in suit. No documentary evidence was produced to prove the attachment. The only evidence produced by the plaintiff in this connection was that of the process-server Loonaram. He says that he affixed the warrant of attachment on the house of the defendant judgment-debtor and made a report to the effect to the court. This was certainly not the manner in which a valid attachment should have been made according to law. O. XXI, R. 54 of the Code of Civil Procedure provides that where the property is immovable, an attachment must be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge. Further, the order must be proclaimed at some place adjacent to such property by beat of drum or other customary mode, and a copy of the order affixed on a conspicuous part of the property and then upon a conspicuous part of the court-house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate. Consequently no property can be held to be attached unless, first, the order for attachment has been made, and, secondly, the other things prescribed by law have been done in execution of that order. This requirement applies whether the attachment is in execution of the decree or is an attachment before judgment. See Bai Hakimbu vs. Daya-bhai Rughnath (1) (A. I. R. 1939 Bom 508.) and Monoharlal Banerjee vs. Bengal Immunity Co. (2) (A. I. R. 1945 Cal. 308. ). There is nothing on the record to show that a valid attachment before judgment was effected in the manner prescribed by law in the present case. We hold, therefore, that as there was no valid attachment before judgment, there was nothing on this score to render invalid the sale made by the judgment-debtor in favour of the plaintiff-respondents. Learned counsel for the appellant urges his second ground of attack on the following facts. He admits that when the appellant's decree was transmitted to the Revenue Commissioner for execution under sec. 60 of the Bikaner Civil Procedure Code (Act No. I of 1920) which corresponds to sec. 68 of the Indian Code of Civil Procedure, he forwarded it to the Nazim Ganganagar for execution who on 16. 6. 42 struck off the execution application and consigned it to the record room for want of satisfaction on the ground that arrears of land revenue were outstanding against the judgment-debtor Sultan (Khata No. 92), and therefore the land sought to be proceeded against in execution could not be auctioned. Soonafter on 26. 6. 42, the plaintiff-respondents obtained a sale-deed from the judgment-debtor in respect of the 15 Bighas and 2 Biswas of his land which was registered a few days later on 8. 7. 42. Then on 2. 7. 42, decree-holder Hansraj applied to the Nazim to restore the execution application, whereupon the latter restored it and issued a warrant of attachment against the judgment-debtor which the latter refused to accept. Under these circumstances it is contended that so long as the Nazim could exercise or perform, in respect of the judgment-debtor's immovable property or any part thereof, any of the powers or duties conferred or imposed on him under the Third Schedule of the Civil Procedure Code, the judgment-debtor was incompetent to alienate such property except with the written permission of the Revenue Commissioner under paragraph 11 of the Third Schedule. It was further contended that the order passed by the Nazim striking off the execution application for want of satisfaction was in substance an order adjourning the proceedings sine die and was not an order of dismissal, that the subsequent order for restoration of the execution application was strictly not accurate and uncalled for and that the Nazim was in control of the execution proceedings right from the date when the execution petition was first transferred to him and throughout the material period, during which the sale-deed in favour of the plaintiff respondents was executed on 26. 6. 42. Now, there is no doubt that the powers of the Collector under the Third Schedule terminated as soon as a decree is satisfied. The actual return of the execution case to the Civil Court is not material as it is merely a ministerial act. The point for determination in this case, however, is whether the powers of the Nazim were terminated when he passed his order dated the 16th June, 1942, and struck off the execution application and consigned it to the record for want of satisfaction. We have given this matter our careful consideration but are unable to accept the contention that all that the Nazim did on 16. 6. 42 was that he postponed or adjourned the execution application sine die. He purported to dismiss the application and in fact did so for a certain reason which appeared to him to be adequate, and into the propriety of which we need not enter. We may add that the Nazim had not merely struck off the application in this case but struck it off for want of satisfaction which is indeed significant. There was nothing to prevent the learned Judge from adjourning the application if he really wanted to do so and to say that he was adjourning it. Now an execution court or for that matter a Collector under sec. 68 C. P. C. may dismiss an execution application under a variety of circumstances. He may dismiss an execution application when a decree is completely satisfied. He may also dismiss an application in partial satisfaction, when he is unable to proceed with it. Similarly he may dismiss it owing to non-satisfaction as in his view it may not be possible to proceed with the execution of the decree. What the Nazim really did was to dismiss the application for want of satisfaction in the present case as he thought that the property of the judgment-debtor could not be proceeded against on account of there being arrears of land revenue in respect of it. We have also no doubt that it was perfectly open to the Nazim to have restored the application which he had earlier dismissed. There is ample authority for the proposition that the Collector to whom a decree is transferred for execution under sec. 68 C. P. C, or any person to whom such authority may in law be delegated by the Collector, can dismiss an execution petition as well as restore it in the exercise of his inherent powers under sec. 151 of the Code of Civil Procedure. See Bholu vs. Ramlal (1) (A. I. R. 1921 Lah. 67.), Md. Hanif vs. Ali Raza (2) (A. I. R. 1933 All. 783.) and Damodorlal vs. Kheduprasad (3) (A. I. R. 1949 Nag. 160. ). Indeed the order of restoration is easily understandable on the hyphothesis that the Nazim had dismissed the execution application and not merely adjourned it earlier. We are. , consequently, of the opinion that the powers of the Nazim terminated by virtue of the order passed by him on 16. 6. 42, which order really amounted to a dismissal of the execution proceedings. It follows that any alienation which was made subsequent to the termination of the Nazim's authority was not and could not be hit by para 11 of the Third Schedule. It is true that the Nazim restored the execution proceedings on 2. 7. 42 and issued a fresh warrant of attachment, but the sale-deed had meanwhile been executed by the judgment-debtor in favour of the plaintiff-respondents on 26. 6. 42. The sale-deed was registered later on 8. 7. 42 but that is immaterial because the sale-deed must take effect from the date when it was executed and not from the date on which it was registered. Now the important point that remains for determination in these circumstances is whether the restoration of the execution petition on 2. 7. 42 would revive the disability imposed under para 11 of the Third Schedule as from the date when the Nazim earlier came to exercise authority in the matter of this execution. In other words is the sale made between the time when execution stood dismissed and the time when it was restored affected by para 11 of the Third Schedule ? Learned counsel for the defendant appellant has not been able to cite any authority before us directly dealing with this point. He has relied on Seth Ballabhdas vs. Sobhasingh (1) (A. I. R. 1924 Nag. 216 2) ). In that case a property was sold by a private sale after an execution sale was set aside by an assistant commissioner but before an appeal was preferred to the Collector who reversed the order. It was held that the sale was void under para 11 of the Third Schedule of the Code of Civil Procedure because the proceedings must be held to continue till their final disposal on appeal and therefore a sale made before the order of the assistant commissioner was confirmed on appeal was prohibited under para 11 of the Third Schedule. The case cited is clearly distinguishable from the present case as the order of the assistant commissioner was appealable and further an appeal was filed from that order, and the proceedings continued till they were determined by appeal. The order of the Nazim dated 16. 6. 42 in the present case however was not at all open to any appeal and it could not be said that the execution proceeding was thereafter still pending on 26. 6. 42 when the sale-deed in favour of the plaintiff respondents was executed. Another case relied on by learned counsel for the appellant is Raja Mohan Manncha vs. Mansoor Ahmed (2) (A. I. R. 1937 Oudh 410. ). There the Collector in exercise of his powers under sec. 68 C. P. C. directed the sale of certain villages and to stop further sale when the decree was satisfied. The sale officer sold two villages only and exempted the other villages from sale. The judgment debtor thereafter mortgaged one of the exempted villages without the permission of the Collector. It was held that the proceedings before the Collector did not cease upto the date of the mortgage and that there was a possibility of the sale of the two villages being set aside and therefore the mortgage was void as being in contravention of para 11 of the Third Schedule. This case cannot help the appellant, because in the case before us the Nazim had dismissed the exemption petition for want of satisfaction and the proceedings had ceased before him. We may next refer to Aijaz Ahmed vs. Nizirul Hasan (3) (A. I R. 1935 All. 568, ). In that case property worth far more than the purchase price was purchased by the decree-holder who was lambardar of the village by practising fraud in publishing and conducting the sale with the result that no purchaser except the decree-holder was present at the time of the auction sale and further the decree-holder deliberately omitted to obtain the sale-certificate for a period of three years so as to keep the judgment debtor in complete ignorance of the sale having taken place. It was held in such circumstances that the Collector retained jurisdiction, even after he had retransmitted to the Civil Court the record of the execution case transferred to him for execution under sec. 68 C. P. C, to set aside the sale. The case, was, with respect, absolutely correctly decided on its special facts and it is indeed too well established to admit of any questioning that fraud would vitiate even the most solemn of transactions or proceedings. This case is no authority, however, for holding that where a Collector or his subordinate officer may dismiss an execution application on account of his inability to proceed with it, the authority of the Collector can nevertheless subsist and he may still retain control over the execution proceedings, so as to attract the provisions of para 11 of the Third Schedule. It is true that in the present case the intervening period between the dismissal of the execution application and its restoration was only a few days viz. , from 16. 6. 42 to 2. 7. 42, but it is perfectly conceivable that such a period may be a year or some years in other cases. Could it be said, therefore, that all alienations made during such intervening period must be held to be invalid as falling within the four corners of paragraph 11 of the Third Schedule ? We are of opinion that such a view would not be in consonance with reason or common-sense. An analogy is furnished in this connection by cases of dismissal of execution applications under O. XXI, R. 57 C. P. C. It has been held that a revival of the execution proceedings will not operate to revive the attachment so as to prejudice the rights of the third parties in the property acquired in the meantime. Thus, where the judgment-debtor transferred the property after an execution proceeding was dismissed and a fresh attachment was made later which resulted in a sale in favour of the decree-holder but in the meantime the plaintiff had purchased the property from the judgment-debtor it was held that the title of the plaintiff must prevail over that of the defendant. See Krishna Subhudhi vs. Janaki Ram (1) (20 I. C. 149.) and Kishan Lal vs. Charat Singh (2) (I. L. R. XXIII All. 114. ). We, therefore, hold that the sale in the present case which was held after the execution proceedings were dismissed by the Nazim and his authority to act under the Third Schedule had terminated was valid and legal and was not affected by a subsequent revival of the execution proceedings as the rights of a third party had come into existence in the intervening period. There was one more point which was urged before us by learned counsel for the appellant, to which we will now briefly refer. This was that the plaintiff respondents' suit for a mere declaration was not competent as they were, out of possession and that it must be dismissed under the provisions of sec. 42 of the Specific Relief Act. In this connection we have been referred to this finding of the trial court that the plaintiffs were not proved to be in possession. The question whether in suits under O. XXI, R. 63 C. P. C, a plaintiff who is not in possession must frame his suit so as to include therein a prayer for possession, is not free from difficulty. We do not consider it necessary, however, to pronounce any decision on this point because it does not appear to have been pressed before the High Court of Bikaner by the appellant in first appeal and secondly because this point was not raised in the grounds of appeal before the Judicial Committee of the State of Bikaner as it then was. The result is that this appeal fails and is hereby dismissed with costs to the contesting respondents. . ;