BOHRA AKHEY RAM Vs. BASANT LAL

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for sale on the basis of a mortgage deed, dated the 8 of January, 1909.

(2.) It appears that Basant Lal, respondent, brought a suit for recovery of a money debt against Khwaju and others, and while that suit was pending, he applied for attachment of the defendants house before judgment. It is not disputed that the house was so attached. While the suit was pending and this attachment was in force, the defendants mortgaged it, on the 8 of January, 1909, in favour of Bohra Akhey Earn, the present appellant. On the 5 of March, 1909, Basant Lal's suit was ultimately decreed. He put in an application for execution on the 14 of April, 1909, which, however, was dismissed on the 22nd of July, 1909, on the ground that the decree-holder had not deposited the process fee necessary for the issue of the proclamation of sale. A second application for execution was made on the 19 of July, 1909, which also was dismissed on the 23 of December, 1909, on apparently not very clear grounds. In pursuance of a third application for execution, a share of the house was put up for sale and purchased at auction by Basant Lal, the decree-holder, on the 1at of June, 1910. 2. The courts below have dismissed the plaintiff's claim on the ground that his mortgage deed was executed while the attachment of Basant Lal was subsisting and that, therefore, it is absolutely void as against the latter.

(3.) On behalf of the plaintiff it is contended that as soon as the first application for execution was dismissed for default of the decree-holder on the 12 of July, 1909, the previous attachment ceased to exist. In support of this contention it is urged that Order XXI, Rule 57, of the Civil P. C. applies not only to attachment in execution of the decree but also to attachment before judgment, and that under that rule, upon the dismissal of an application for execution, the attachment ceased ipso facto.