JUDGMENT
1. This is a plaintiffs’ appeal arising out of a suit for sale on the basis of a mortgage-deed, dated the 3lst of October, 1917, executed by Mohar Singh and Ajab Singh in favour of the plaintiffs Khazan Singh and others. It appears that on the 18th of September, 19l7, an application for execution of a money decree was filed by Karan Singh against Mohar Singh and Ajab Singh, his judgment-debtors, with a prayer that their property should be attached. An attachment was duly effected on the 28th of September, 1917, and the mortgage deed in suit covered the property so attached. It is not disputed in this case that on the date when the mortgage-deed was executed by the judgment-debtors the attachment in execution of the decree of Karan Singh was actually in force. Karan Singh subsequently executed his application and got the property sold and purchased it himself. The present suit is against the mortgagors as well as the heirs of Karan Singh. The Court below has held that the mortgage-deed is ineffective as against the auction-purchaser because it was executed during the subsistence of the attachment. The learned Advocate for the appellants, however, contends that that attachment came to an end on account of certain subsequent proceedings.
2. It appears that while the execution proceedings initiated by Karan Singh were pending, the sons of the judgment-debtors brought a suit for a declaration that the money-decree obtained by Karan Singh was not binding on them and the family property could not be attached and sold in execution of it. The Court was informed of the institution of the suit and on the 13th of May, 1918, passed an unfortunate order that “such a suit having been filed the execution case is struck off”. There is nothing to show that the decree-holder consented to his case being struck off in that way. As a matter of fact, subsequently the decree-holder applied on the 27th of May, 1918, requesting the Court to order that the attachment proceedings were still continuing. This application also was dismissed by the same Subordinate Judge by an order, dated the 28th of May, 1917. It was as follows:
3. “The attachment remains in force for six months from the date of striking off execution case as it was not struck off for default of prosecution. Hence this application, being useless is rejected.” No one has been able to explain what provision of law was in the contemplation of the learned Subordinate Judge when he thought that the attachment remained in force for six months, and six months only. The order which he passed for striking off the execution case was apparently a result of some misapprehension. But his Second order undoubtedly says that the previous order was not passed under Order XXI, Rule 57 because it expressely says that the case had not been struck off for “default of prosecution”. The order further shows that the Subordinate Judge in his mind believed that he was not putting an end to the attachment inasmuch as he thought that it would continue for six months more. Within the expiry of this supposed period, the decree-holder again applied on the 2nd of November, 1918 for execution of his decree.
4. It is obvious that no default had been made by the decree-holder in the prosecution of the execution proceedings. “The striking off” of the case was, as the Court itself remarked, not due to any default of the decree-holder. Order XXI, Rule 57 was, therefore, wholly inapplicable to the case. His application for execution also was not actually “dismissed” but the case was ordered to be struck off, which perhaps meant nothing more than that it should be removed from the register for the time being. The case, therefore, cannot be said to have been disposed of on the merits or dismissed for want of prosecution. The matter was only shelved for the time being pending the result of the suit brought by the sons of the judgment-debtors. The matter, therefore, was only temporarily postponed and not finally disposed of. Under these circumstances it is impossible to hold that the attachment came to an end. In several cases this Court has held that where the execution proceedings are not dismissed on account of the default of the decree-holder, but the matter is merely shelved for the time being, the proceedings must be deemed to be still pending. We may refer to the case of Bijai Saran Sahi v. Deo Kishen Prasad Bahadur Sahi 97 Ind. Cas. 102 : 24 A.L.J. 901 : A.I.R. 1926 All. 734 : 48 A. 735 and cases referred to therein. This principle has been accepted by the Full Bench of this Court in the case of Chhattar Singh v. Kamal Singh 100 Ind Cas. 692 : 49 A. 276 : 25 A.L.J. 201 : A.I.R. 1927 All. 16 (F.B.).
5. It follows, therefore, that the mortgage having been executed during the pendency of the attachment is wholly ineffective and cannot affect the rights of the auction-purchaser Karan Singh or his heirs. The result, therefore, is that the suit must stand dismissed. We accordingly dismiss this appeal with costs including fees on the higher scale.
