JUDGMENT B.D. Agarwal, J. - This is defendant's appeal. 2. The dispute relates to a portion of ahata bearing municipal Nos. 77/2 and 72/10 situate at Halsi road Kanpur. The entire ahata belonged to one Pyare Lal Shukla, who died on May 26, 1947, leaving his widow Smt. Chiraunja Devi and three sons, namely Vishwa Nath, Sidh Nath and Kailash Nath. Kailash Nath borrowed a sum of Rs. 22,000/- from Dr. Luxmi Narain on August 31, 1942, under a registered bond. He also borrowed Rs. 1000/- and Rs. 4800/- on September 1, 1942, and August 22, 1943, respectively from Dr. Luxmi Narain on promissory note. Dr. Luxmi Narain died on April 12, 1945, leaving Govind Narain, his son, as the exclusive heir. Govind Narain intended to sue Kailash Nath Shukla for recovery of the debt. On June 18, 1945, they entered into an arbitration agreement. Jag Mohan Lal Srivastava, Advocate, was appointed by them as the arbitrator. The award was given on June 25, 1945. Govind Narain applied under Section 14 of the Arbitration Act on September 24, 1945, for the award being made rule of the court. The application was registered as Original Suit No. 72 of 1945 and decree was passed in his favour on the basis of the award of January 30, 1946, by the Civil & Sessions Judge, Kanpur. 3. The decree was put to execution by Govind Narain. The execution was registered as Execution Case No. 14 of 1950. The prayer made was for attachment and sale of property belonging to Kailash Nath Shukla, the judgment-debtor. The execution Court directed attachment of the property in dispute on February 18, 1950, which was effected on March 12, 1950. On August 22, 1950, Smt. Chiraunja Devi and two of her sons, namely, Vishwa Nath and Sidh Nath instituted Original Suit No. 375 of 1950 for partition of the property belonging to Pyare Lal Shukla and contended that the property in dispute was not liable to be proceeded against in execution of decree. Kailash Nath Shukla placed reliance on will dated April 1, 1947, claimed to have been made in his favour by his father. Interim stay was granted by the trial court in that suit on January 5, 1952, against the property in question being sold in execution by auction. This interim order was vacated in part on July 24, 1954. Kailash Nath Shukla placed reliance on will dated April 1, 1947, claimed to have been made in his favour by his father. Interim stay was granted by the trial court in that suit on January 5, 1952, against the property in question being sold in execution by auction. This interim order was vacated in part on July 24, 1954. whereby one-fourth share alleged to be of Kailash Nath Shukla in any case by the plaintiffs therein was released from the operation of the restraint order. This was put to auction sale in execution of the aforesaid decree in Original Suit No. 72 of 1945 on November 13, 1961. Govind Narain had died in the meantime. His legal representatives decree-holders-appellants before us made purchase of that share for consideration of Rs. 15,000/- in auction and the sale was confirmed in their favour by order dated January 16, 1963. Smt. Chiraunja Devi died thereafter and 1/20th share, which thereby devolved upon Kailash Nath Shukla, was also released from the operation of the interim stay on April 15, 1964. This was auctioned in execution on September 17, 1965, for Rs. 3,150/- and this too was purchased by the appellants, this sale was confirmed on November 20, 1965. In this manner the appellants-decree-holders made purchase of 3/10th share. Certificate of sale granted in their favour is dated January 8, 1968; constructive possession was delivered in pursuance thereof to them on January 23, 1968. Original Suit No. 375 of 1950 was dismissed ultimately on November 3, 1967. In the meantime the plaintiffs-respondents Nos. 1 and 2 in the appeal before us made purchase of the ahata in dispute on August 10, 1950, from Kailash Nath Shukla under a registered deed of sale. The sale was registered on August 12, 1950. The purchase was for a sum of Rs. 50,000/- as the consideration. Kailash Nath Shukla (defendant No. 5 respondent) also entered into a registered agreement to reconvey the property to the plaintiff- respondents after three years on a consideration of Rs. 50,000/-. This agreement to reconvey is dated August 12, 1950. 4. On March 12, 1955, the plaintiffs- respondents brought Original Suit No. 45 of 1955 giving rise to this appeal with the allegations that they have made purchase of the property in question for value in good faith. 50,000/-. This agreement to reconvey is dated August 12, 1950. 4. On March 12, 1955, the plaintiffs- respondents brought Original Suit No. 45 of 1955 giving rise to this appeal with the allegations that they have made purchase of the property in question for value in good faith. According to them the decree in Original Suit No. 72 of 1945 dated January 30, 1945, created a change against this property and there was no attachment made as required under Order XXI Rule 54, Civil Procedure Code (in short Code). On September 4. 1953, they claimed to have come to know for the first time that the property was put to auction sale in execution. The relief claimed is declaration that the property in question was not attached and is not liable to sale in execution of decree in Original Suit No. 72 of 1945 and also that the auction sale dated November 13, 1961 and September 17, 1965, referred to above, are void. The defendants Nos. 1 to 4, who are the legal representatives of Govind Narain deceased, resisted the suit pleading that there was no charge under the decree dated January 30, 1940, against any property and that on the contrary it was a simple money decree. The attachment was duly made under Order XXI Rule 54 of the Code on March 12, 1950, and this was to the knowledge of the plaintiffs-respondents. The sale relied upon by the latter dated August 10/12, 1950, was obtained to defeat or delay their claim and also it was contended that the auction for sale declaration did not lie in view of Section 42 of the old Specific Relief Act. 5. Learned Additional Civil Judge, Kanpur, found that there was no charge created under the registered bond dated August 31, 1942, executed by Kailash Nath Shukla or under the decree dated January 30, 1945, passed in Original Suit No. 72 of 1945, on the basis of the award given on June 25, 1945. The order for attachment was passed by the execution Court on Feb. 18, 1950. The Court Amin went to the spot on March 12, 1950 to make the attachment in pursuance of the order. The drum was beaten at the spot; a copy of the proclamation was affixed on conspicuous part of the property in dispute: the report was also drawn. 18, 1950. The Court Amin went to the spot on March 12, 1950 to make the attachment in pursuance of the order. The drum was beaten at the spot; a copy of the proclamation was affixed on conspicuous part of the property in dispute: the report was also drawn. Prohibitory order upon Kailash Nath Shukla was served on November 15, 1951. In the opinion of the court below the formalities required to make the attachment were complied with except that a copy of the order is not shown to have been affixed upon a conspicuous part of Court house. On this basis, it was held, the attachment could not be treated as effective. The sale relied upon by the plaintiffs-respondents was not intended to defeat or delay the creditors. The decree in Original Suit No. 375 of 1950 does not operate as res judicata. Delivery of possession to the decree-holders on January 23. 1968, was symbolic only and a suit for declaration could lie. The plaintiffs having claimed paramount title in themselves, they were not required to object under Order XXI or Rule 90 of the Code. On these findings the suit was decreed in plaintiffs' favour on January 13, 1969. Aggrieved the defendants Nos. 1 to 4 have preferred this appeal. 6. Controversy does not exist before me in regard to the following propositions : i. The decree in Original Suit No. 72 of 1945 dated January 30, 1946, based on the award dated January 25, 1945, did not create charge against property. This stands concluded as a result of decision of a Division Bench of this Court in Execution First Appeal No. 208 of 1953, Kailash Nath Shukla v. Govind Narain and others, dated January 2, 1963. That appeal arose from order dated February 7, 1953, passed by the execution Court upon objection raised under Section 47 of the Code from the side of Kailash Nath Shukla against the execution of this decree. It was held that the decree dated January 30, 1946, remains a simple money decree to which the provisions of Order XXXIV of the Code were not applicable. This decision binds the appellants as well as the plaintiffs-respondents, who claim through Kailash Nath Shukla. ii. It was held that the decree dated January 30, 1946, remains a simple money decree to which the provisions of Order XXXIV of the Code were not applicable. This decision binds the appellants as well as the plaintiffs-respondents, who claim through Kailash Nath Shukla. ii. The decree in Original Suit No. 375 of 1950 dated November 3, 1967, does not operate as res judicata between the parties the reason being that in so far as these parties are concerned they were arrayed as defendants in that suit and there was no lis as between themselves adjudicated in that suit nor such an adjudication required in order to grant or refuse the relief for partition to Stint. Chiraunja Devi etc., who had brought that suit. The controversy in that case was confined on the point as to whether there was a Will left by Pyare Lal Shukla, as asserted by Kailash Nath Shukla or as to whether he died intestate. iii. There is no bar arising under Section 42 of the Specific Relief Act or the corresponding provision in the new Act to the suit giving rise to this appeal inasmuch as the defendants- appellants obtained constructive possession only in regard to 3/10th share on January 23, 1968. in the property in dispute and this does not oust the co-sharers deriving title by purchase made from Kailash Nath Shukla on August 10/12, 1950. iv. The plaintiffs-respondents could not have raised objection under Order XXI Rule 90 of the Code because they assert title in themselves by virtue of purchase dated August 10/12, 1950, and contend that on this account the judgment-debtor had no interest left therein which could be made the subject- matter of execution proceeding. 7. The sole question agitated by Sri M. P. Srivastava, learned counsel for the appellants, before me is whether there was valid attachment made under Order XXI Rule 54 of the Code in respect of the property in dispute. The contention put forward is that the property having been duly attached on March 12, 1950, by order of the execution Court passed on February 18, 1950, there could be no purchase made from Kailash Nath Shukla, the judgment-debtor, on August 10/ 12, 1950, in derogation of the attachment and that in face of the attachment this purchase might be regarded as void vis-a-vis the decree- holders-auction-purchasers of the property. As mentioned above, the property in dispute was put to auction sale to the extent of th share on November 13, 1961, for Rs. 15,000/ which was confirmed on January 16, 1963, and 1/20th share was sold likewise on September 17, 1965. for Rs. 3,150/-, which was confirmed on November 20, 1965. The decree-holders-auction-purchasers are the appellants. Section 64 of the Code lays down : - 64. Private alienation of property after attachment to be void. "Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment." 8. Order XXI Rule 54 of the Code prescribes the mode for attachment of immovable property. In so far as relevant this provision. as amended by this court and in force during the relevant period, reads : -- Order XXI Rule 54. "(1) Where the property is immovable, the attachment shall 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. (2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the court house .............. (3) The order shall take effect as against purchasers for value in good faith from the date when a copy of the order is affixed on the property, and against all other transferees from the judgment-debtor from the date on which such order is made. 9. Dispute does not exist on the point that attachment of the immovable property in question was directed by the Court in Execution Case No. 14 of 1950 arising out of Original Suit No. 72 of 1945 on February 18. 1950. A warrant of attachment was issued to the Court Amin under the signature of the Court below on February 20, 1950, requiring him to make the attachment and report thereafter up to March 13, 1950. D. W. Ram Sarup, the then Court Amin, testified that he went to the spot to execute this order. 1950. A warrant of attachment was issued to the Court Amin under the signature of the Court below on February 20, 1950, requiring him to make the attachment and report thereafter up to March 13, 1950. D. W. Ram Sarup, the then Court Amin, testified that he went to the spot to execute this order. The report submitted by him is dated March 12, 1950. He went to the spot on March 12, 1950; the drum was got beaten, a copy of the proclamation was affixed on conspicuous part of the property in dispute and a copy thereof was attempted to be served also on the judgment-debtor the same day, but he was not available. D. W. Vishnu Narain, one of the decree-holders, who accompanied the Court Amin on the occasion, was also examined in corroboration. The Court below has, considering their evidence and the report duly submitted, reached the finding that the drum was beaten; a copy of the order was affixed on conspicuous part of the property and that a copy of the order was served by affixation on the judgment-debtor later on November 15, 1951. The only infirmity which, according to the court below, in the process was that a copy of the order is not shown to have been affixed on conspicuous part of the court-house. In the report submitted by the Court Amin it is not expressly recited that a copy of the order was affixed on the court-house though he states that the attachment was done as per requirements of law. Assuming that a copy of the order was not affixed on the court-house, the question is whether on this account it can be held that there was no attachment made on March 12, 1950, in respect of the property in dispute within the meaning of the expression used in Section 64 of the Code quoted above. Sri Srivastava relied upon certain decisions concerning the absence or irregularities in making attachment in the context of objection raised under Order XXI Rule 90 of the Code. Sri Srivastava relied upon certain decisions concerning the absence or irregularities in making attachment in the context of objection raised under Order XXI Rule 90 of the Code. In Haji Rahim Bux & Sons v. Firm Samiullah & Sons, AIR 1963 All 320 (DB) it was held that in cases in which attachment is necessary, the absence of attachment prior to the sale of immovable property in execution of a decree amounts to no more than an irregularity and is not sufficient to vitiate the sale in the absence of any substantial loss resulting from such want of attachment as contemplated under Order XXI Rule 90 of the Code. The case in Mangal Prasad v. Krishna Kumar Maheshwari, AIR 1977 All 147 (Division Bench) cited for the appellants also arose from objection under Order XXI Rule 90. Following Haji Rahim Bux & Sons (supra) it was reiterated in that context that absence of attachment of property does not render the sale to be a nullity and that it is only a material irregularity, which can be taken into consideration under Order XXI Rule 90. This view was endorsed also in Ram Krishna Kapoor v. Purshottam Das Poddar AIR 1981 All 21 (DB) stating that Order XXI Rule 90 insists upon the existence of material irregularity or fraud in publishing or conducting the sale accompanied with substantial injury caused to the objector and the absence or irregularity in making attachment prior to the sale may not be placed in this category. (see also M/s. Satya Narain Sri Kishan Kumar v. Arora & Co., AIR 1979 All 240 ). In my opinion the principle which holds good in relation to objection raised under Order XXI Rule 90 of the Code in this behalf cannot be made applicable where the decision turns upon the effect of Section 64 of the Code. It will be noticed that according to Section 52(b) of the Code execution may be had inter alia, by attachment and sale or even by sale without attachment of any property. For purposes of sale in execution of a decree, therefore, it is not incumbent to have the property attached. It will be noticed that according to Section 52(b) of the Code execution may be had inter alia, by attachment and sale or even by sale without attachment of any property. For purposes of sale in execution of a decree, therefore, it is not incumbent to have the property attached. Rule 90 of Order XXI rests upon ground of material irregularity or fraud in publishing or conducting the sale where this has resulted in substantial injury caused to the objector and the settled view is that the absence or irregularity in attachment made, if any, before the execution cannot constitute valid ground to object under this rule. Section 64 of the Code. on the other hand, requires as a condition precedent to its application "that an attachment has been made". If this condition precedent is not fulfilled, the private transfer or delivery of property or of any interest therein would not be open to impeachment on ground that the same is void. A claim enforceable within the purview of this section cannot indeed arise unless the attachment has taken place. Failure to attach property before sale becomes material if the property has been privately alienated before the auction sale made by the Court is confirmed and the question arises in the context of Section 64, Nanhey Khan v. Lala Bhagwan Das, AIR 1982 All 75 . It is oft repeated as laid down by the Privy Council in Muthiah Chetty v. Palaniappa Chetty, AIR 1928 PC 139 that no property can be declared to be attached unless first the order for attachment has been issued; and secondly in execution of that order the other things prescribed by the rules in the Code have been done; it was also stated therein that the attachment is something separate from the mere order; and is something which has to be done and effected before attachment can be declared to have been accomplished. This has consistently been followed, including by this Court, vide Pokhpal Singh v. Kanhaiya Lal, AIR 1946 All 438 : Sri Krishna Gupta v. Ram Babu, 1966 All LJ 990 : AIR 1967 All 136 . The object behind Section 64 is to prevent fraud on decree-holders and to secure in fact the rights of the attaching creditor against the attached property by prohibiting private alienation pending attachment. Attachment creates no charge or lien upon the attached property. The object behind Section 64 is to prevent fraud on decree-holders and to secure in fact the rights of the attaching creditor against the attached property by prohibiting private alienation pending attachment. Attachment creates no charge or lien upon the attached property. It only confers a right on the decree- holder to have the attached property kept in custodia legis for being dealt with by the Court in accordance with law. It merely prevents and avoids private alienation it does not confer any title on the attaching creditors. (Mulla : C.P.C. Vol I (1981) p. 434). A private transfer by sale despite attachment made of the property is void as against the decree-holder in whose favour the attachment is directed or a person acquiring title to property by auction sale in execution subsequent to attachment. 10. The trial court has based its decision on the sole ground that a copy of the order of attachment is not shown to have been affixed on a conspicuous part of the court-house. In arriving at this conclusion the Court has overlooked the implication of the first part of sub-rule (3) of Rule 54 of Order XXI, as amended by this Court. Sub-rule (3) extracted above was introduced by amendment by this Court far back with effect from July 24, 1926. Sub-rule (2) envisages, inter alia. that a copy of the order be affixed on a conspicuous part of the court-house also, sub-rule (3), as amended by this Court. In its first part dispenses with this requirement and makes the order of attachment effective as against purchasers for value in good faith from the date when a copy of the order is affixed on the property. We assume as the plaintiff-respondents have contended throughout that they are purchasers for value in good faith. It is significant that in terms of this part of sub-rule (3) affixation of the order on the court-house stands dispensed with. The court below has no doubt, reproduced this sub-rule (3) in its entirety, but in the course of discussion made in the judgment, it appears to have forgotten to refer to the implications thereof. It is significant that in terms of this part of sub-rule (3) affixation of the order on the court-house stands dispensed with. The court below has no doubt, reproduced this sub-rule (3) in its entirety, but in the course of discussion made in the judgment, it appears to have forgotten to refer to the implications thereof. Sub-rule (3) in its first part read with sub-rule (2) leaves no room to doubt that if, as in the present, the purchase impugned is for value in good faith, the attachment against such purchasers is to be deemed effective from the date when the order was affixed on the property, and herein this was done on March 12, 1950. I am conscious of the observation of the Division Bench in Pokhpal Singh v. Kanhaiya Lal, AIR 1946 All 438 (supra). In that case the execution court, at the instance of the decree-holder, made an order under Rule 54 of Order XXI of the Code on December 12, 1931(1981?), for attachment of immovable property. It was in evidence that this attachment was actually effected by proclamation and affixation of a copy of the order on February 2, 1932(1982). Prior to that date the judgment-debtor had, on January 1, 1982, executed a deed of sale in respect of part of the property attached. It was observed that sub-rule (3) of rule 54 is repugnant to the provision of Section 64 of the Code. This observation it must be noted, is in relation to the second part of sub-rule (3) (as amended by this Court). In terms of this second Part, an attachment as against transferees other than purchasers for value in good faith is made effective from the date on which the order of attachment is made. Their Lordships were of the opinion that it is not enough that there is merely an order made for attachment. At page 442 it was pointed out in this connection that it has been held in a number of cases that attachment is not made within the meaning of Section 64 of the Code by the mere making of an order for attachment. Reliance was placed on AIR 1928 PC 139 (supra) where it was made clear that the order is one thing, the attachment is another. It would be anomalous if a person holding an order could dispense with attachment altogether as an operation or a fact. Reliance was placed on AIR 1928 PC 139 (supra) where it was made clear that the order is one thing, the attachment is another. It would be anomalous if a person holding an order could dispense with attachment altogether as an operation or a fact. According to their Lordships, therefore, sub-rule (3) is repugnant to Section 64 in so far as it envisages that "an attachment is to be effective before it has actually been made" whereas Section 64 provides for certain results to accrue only where the attachment has actually been made. Mere passing of the order of attachment would not, therefore, suffice to make the attachment effective; the attachment has also to be made. In making the attachment, however, there is no bar to dispensing with affixation of a copy of the order on the court- house. This pertains only to the details of the procedure according to which the attachment is to be effected. Sub-rule (2) contemplates affixation of a copy of the order on the court- house also, but in view of sub-rule (3) this part of the procedure by which the attachment is to be made can be dispensed with. There is nothing in other words, so far as the first part of sub-rule (3) is concerned, to make the same inconsistent with Section 64 and the observations in Pokhpal Singh ( AIR 1946 All 438 ) (supra) considered in their context are confined in their application to the second part of sub-rule (3) only. This came up for consideration before another Division Bench in Sri Krishna Gupta 1966 All LJ 990: ( AIR 1967 All 136 ) (supra) wherein there was an application for attachment before judgment. In his report Amine stated that he went to the spot and announced attachment by beat of drum and further that he effected attachment according to law. He did not specify what he did to effect attachment according to law beyond announcing attachment by beat of drum. Nothing further seemed to have been done in pursuance of the application for attachment before judgment. The judgment debtor, who probably did not know that the house had been attached before judgment executed a mortgage deed thereof in favour of the plaintiffs-respondents. Nothing further seemed to have been done in pursuance of the application for attachment before judgment. The judgment debtor, who probably did not know that the house had been attached before judgment executed a mortgage deed thereof in favour of the plaintiffs-respondents. This action, therefore, was a case where there was a mere order of attachment passed before judgment and it was not followed up with compliance even to the extent envisaged in the amended sub-rule (b). Upon a review of the case law on the subject it was laid down at page 1001 (of All LJ) : (at p. 143 of AIR) : "On a consideration of the whole matter we think that both on principle and authority the correct view is that no attachment comes into existence where the prescribed procedure has not been followed as in the present case. But cases where the procedure prescribed has been substantially followed while there are minor irregularities not affecting the real object, it may be held that the attachment is valid despite some minor irregularities." 11. Even if, therefore, sub-rule (3) of Rule 54 of Order XXI introduced by this Court were to be ignored in its entirety, the non- affixation of a copy of the order on the court- house would remain a mere irregularity of no substance and was minor as not to take away the effect of attachment or lead to the conclusion that the attachment was not made. The material facts remain that there was not merely the order of attachment passed, but it was also proclaimed by beat of drum at the spot followed by affixation of copy of the order on a conspicuous part of the property involved. The fact that a copy of the prohibitory order could not be served upon the judgment-debtor at the same time need not detain us long. View is settled that this in itself does not vitiate the attachment. In Karan Singh v. Ram Sahai, AIR 1941 All 41 the Division Bench observed that there is no direction in Order XXI Rule 54 that a copy of the prohibitory order shall be served upon the defendant. All that is enjoined is that the order shall be proclaimed and affixed. If the property is proclaimed and proclamation affixed, thereon the attachment is complete and valid. All that is enjoined is that the order shall be proclaimed and affixed. If the property is proclaimed and proclamation affixed, thereon the attachment is complete and valid. There is no warrant for the proposition that an attachment is not complete until notice of the prohibitory order is served upon the owner of the property. 12. To sum up, in my opinion :- i the principle underlying the issue of attachment in the context of Order XXI Rule 90 of the Code is different from that which is relevant for purposes of Section 64 of the Code; for purposes of Order XXI Rule 90 of the Code the absence of attachment is immaterial. The material consideration is irregularity or fraud in the conduct or publication of sale accompanied with substantial loss resulting to the objector: ii in the context of Section 64 of the Code there has not merely to be the order of attachment passed by the Court, but also it has to be shown that the attachment was made; iii as against purchaser for value in good faith the attachment becomes operative when the order passed therefor is proclaimed on the spot and a copy thereof is affixed on the property; in view of the first part of sub-rule (3) of Rule 54 it is not essential that a copy of the order be affixed on the court-house, and, iv the omission to affix a copy of the order on the court-house constitutes, in any event a minor irregularity, which has to be ignored, including for purposes of giving effect to Section 64 of the Code. 13. From the discussion made in the above it follows that there was attachment of the property in dispute directed in this case on February 18, 1950, which was followed up by the attachment being actually made on March 12, 1950. In face thereof the purchase made by the plaintiffs-respondents from Kailash Nath Shukla. the judgment-debtor, on August 10/12, 1950. is rendered void in so far as 3/ 10th share in the property in dispute is concerned. The suit in favour of the plaintiffs-respondents could not, therefore, have been decreed under the law. 14. The appeal accordingly succeeds and is allowed. The judgment and decree of the Court below are set aside. The suit shall stand dismissed. In the circumstances the parties shall hear their own costs.