Short Note : The material facts giving rise to this appeal briefly are as follows: The appellant and one Ganpat had obtained a money decree against respondent No.3 Badrilal in COS No. 1324/52 and in execution of that decree parcels of land bearing survey Nos.46/1, 159, 165 and 174 situated at village Dhankhedi were attached. The objection to the attachment preferred by plaintiff respondents Nos.1 and 2 was dismissed by the executing Court. Hence the plaintiffs filed a suit under O.21, R.63 CPC for declaration of their exclusive title to the property attached. The plaintiffs' case was that the suit property had fallen to their share as a result of partition between them and respondent No.3 Badrilal. The trial Court found that the plaintiffs had failed to make out the case of partition as pleaded and, in this view of the matter, dismissed the plaintiffs suit. On appeal, the lower appellate Court upheld the finding given by the trial Court that the plaintiffs had failed to prove partition. The lower appellate Court, however. held that as the attached property formed part of the joint family property belonging to the plaintiffs and respondent No.3, the attachment effected in execution of the decree was not according to law. The lower appellate Court, therefore, set aside the attachment of the suit property in execution of the decree passed in COS No.1324/52. Aggrieved by the judgment and decree passed by the lower appellate Court, the appellant has preferred this appeal. Held: Learned counsel for the plaintiff-respondents stated at the Bar that subsequent to the institution of the suit, parcels of land bearing survey Nos 46/1, 159, 165 and 174, situated at village Dhankhedi, have already been sold in execution of the decree passed in COS No. 1324 of 1952 against defendant No.3 Badrilal. This fact is not disputed on behalf of the appellant. Learned counsel for appellant contended that as title to the aforesaid land did not vest in defendant No.3 Badrilal alone, the sale of the suit land in counsel for the appellant, vehemently contended that even though defendant No.3 Badrilal was merely having his undivided interest in the land in question, the sale need not be set aside. I am unable to accept this contention. In this connection. I am unable to accept this contention. In this connection. I may refer to the following observations of Dixit, J. (as he then was) in Keshav Narain v. Ghasiram (AIR 1956 MB 226) :- "It is thus plain that the effect of a suit under O.22, R.63 or O.21, R.103 is to keep alive the execution proceedings giving rise to it till the decision of the suit. The order cancelling or maintaining an attachment in execution proceeding is subject to the result of such a suit and is liable to be affected by it. It becomes final only on the date of the disposal of the suit. It follows, therefore. that if in execution proceedings the objection of a claimant that the attached property belongs to him and is not liable to be sold in execution of a decree against the judgment debtor is rejected and if that order is ultimately reversed in a suit under O.21 R. 63 to which the decree-holder and the judgment-debtors are parties and further, if in the meantime the property is sold by the executing Court, then the effect of the decision in the suit under O.21. R.63 would be to remove the attachment and to set aside the sale founded on it. As the order of attachment made in execution proceedings is itself subject to the decision of a suit under O.21, R.63 and that order is subsequently set aside, the foundation upon which the sale of the attached property took place would disappear and the sale would ipso facto stand vacated without any formal order setting aside the sale from the executing Court or from the Court deciding the suit under O.21, R.63." I respectfully agree with the aforesaid observations. If the foundation upon which the sale of the attached property took place has disappeared, the attachment and sale of the suit land, which has already taken place, shall stand vacated. Accordingly, this appeal is partly allowed. The judgment and decree passed by the lower appellate Court are modified as under: The plaintiffs are held entitled to a declaration that they along with defendant No.3 Badrilal have right, title to and interest in the parcels of land bearing survey Nos. Accordingly, this appeal is partly allowed. The judgment and decree passed by the lower appellate Court are modified as under: The plaintiffs are held entitled to a declaration that they along with defendant No.3 Badrilal have right, title to and interest in the parcels of land bearing survey Nos. 46/1, 159, 165 and 147 situated in village Dhankhedi and that the undivided interest of Badrilal alone in the said land in liable to be attached and sold in execution of the decree passed against him in COS No. 1324 of 1952. The attachment and sale of the aforesaid land, which has already taken place, is hereby vacated. AIR 1956 M.B. 226= 1956 MBLJ 1077 relied on. Appeal partly allowed.