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Gangappa, v. Boregowda And Others,
Structured Summary of the Provided Opinion
Factual and Procedural Background
The suit arose on a promissory note in which the plaintiff obtained an attachment before judgment of certain properties. The trial Court dismissed the suit. After that dismissal, some of the properties that had been attached were sold by their original owners to third parties or otherwise alienated. On appeal the judgment of dismissal was reversed and the plaintiff's suit was decreed; that decree was subsequently confirmed in second appeal. Pursuant to the ultimate decree the properties that had been attached before judgment were brought to sale; those properties were purchased by third parties (strangers) at Court sale, and the sales were confirmed and the properties delivered to the purchasers.
The central procedural question that arose during the appeals was whether an attachment before judgment, which had ceased to be in force by reason of the trial Court's dismissal of the suit (and so was treated as having ended), is revived when the superior Court subsequently reverses the dismissal and passes a decree in favour of the plaintiff. Because different High Courts had taken conflicting views on this point, the question was referred to a Full Bench (or larger Bench) for authoritative determination. After the Full Bench opinion was expressed, the Division Bench dismissed the appeal with costs in accordance with that opinion.
Legal Issues Presented
- Whether an attachment before judgment which ceased to be in force with the dismissal of the suit will revive when the decree dismissing the suit is subsequently reversed and a decree in the plaintiff's favour is passed by the same Court or by a superior Court.
- If such an attachment does revive, whether the revival will operate from the date on which the attachment before judgment was originally effected (i.e., with retrospective effect as provided for in the Code).
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 32 Mys. CCR 97 | Held that reversal of a judgment of dismissal does not operate to revive an attachment or the surety's liability in every case irrespective of the terms of the bond. | The Court considered this decision closely. The High Court's own decisions, including this one, were treated as supporting the view that an attachment terminated by dismissal is not automatically revived on reversal. The present Court followed its earlier stance and answered the reference in the negative consistent with this authority. |
| 49 Mys. HCR 220 | Addressed continuing liability of surety; held obligation depends on the language of the bond and that a bond could bind the surety to satisfy any decree ultimately passed (i.e., liability may survive dismissal depending on bond terms). | The Court treated this decision as supporting the proposition that surety-liability questions depend on the bond's language. It was cited as part of the cluster of Mysore authorities aligning with the view that revival is not automatic and that bond terms matter. |
| AIR 1952 Trav-C 414 (Muhammad Abdul Khadir v. Padmanabha Pillai) | Full Bench of Travancore-Cochin held that an attachment before judgment which ceased on dismissal will revive when the decree dismissing the suit is reversed, and that revival operates from the original date of attachment. | This decision prompted the reference because it conflicted with the view taken by other High Courts (and this Court). The present Court considered and rejected this reasoning, concluding that it could not adopt the Travancore-Cochin Full Bench view. |
| 19 Mys. CCS 275 | Held that dismissal of a suit does not by itself operate as a release of an attachment before judgment; attachment subsists unless expressly withdrawn by an order of the Court. | The Court recounted this authority as an early decision taking the view that an attachment remains unless formally withdrawn. This decision was part of the historical debate and was considered in the analysis of earlier conflicting authorities. |
| Ramchand v. Pitam Mal, 10 All 506 | Support for the proposition that an attachment before judgment is treated as coming to an end on dismissal of the suit and that the Court is obliged to withdraw it. | Referred to by Doraswami Iyer J. in earlier reasoning. The present Court noted such Calcutta/Allahabad strand of authority when surveying divergent views. |
| Sasirama Kumari v. Meherban Khan, 13 Cal LJ 243 | Cited among authorities on the effect of dismissal on attachments or security arrangements. | Referred to in the course of prior reasoning that an attachment may cease on dismissal; included in the array of supporting cases surveyed by earlier judges. |
| Abdur Rahaman v. Amir Sharif, AIR 1918 Cal 39 | Calcutta High Court authority on treatment of attachments and their cessation on dismissal. | Included by earlier judges in support of the view that an attachment comes to an end on dismissal and the Court must withdraw it. |
| Protap Chandra v. Sarat Chandra, AIR 1921 Cal 101 | Another Calcutta authority relevant to cessation of attachment on dismissal. | Referred to among authorities supporting the position that an attachment ends with dismissal of suit. |
| Shanker v. Ram Kishen, AIR 1915 Lah 217 | Authority holding reversal does not revive an attachment which had been cancelled (e.g., cancellation of a surety bond). | Referred to in Doraswami Iyer J.'s discussion that a cancelled bond/attachment is not revived by reversal; cited as supportive of non-revival in particular circumstances. |
| D. Manackjee v. R.M.N. Chettyar Firm, AIR 1927 Rang 310 | Rangoon High Court decision cited in the context of attachments and their cessation. | Cited as part of the body of authority (Bombay, Calcutta, Rangoon, Madras) that has taken the view that attachment ends on dismissal. |
| Subbarama Iyyar v. Somalinga Subba Ayyar, AIR 1925 Mad 114 | Madras decisions reflecting divergent earlier views on whether an attachment ceases automatically on dismissal. | Cited as part of the Madras jurisprudence reviewed by the Court when surveying conflicting authorities. |
| Namagiri Ammal v. Muthu Velappa Goundan, AIR 1928 Mad 940 | Madras authority that took one position on the effect of dismissal on attachment. | Included among the Madras decisions analyzed; the Court noted Madras had divergent decisions and later full Bench overruled some earlier positions. |
| Seethai Ammal v. Narayana Ayyangar, AIR 1928 Mad 976 | Madras decision holding that attachment terminated automatically with dismissal (a contrary view within Madras loop). | Noted as part of the conflicting Madras precedents; the Court recorded that later Madras full Bench settled the difference. |
| Air 1930 Mad 514 (Full Bench) | Madras Full Bench held that upon dismissal an attachment before judgment necessarily ceases under O. 38, R. 9 even though the Court does not pass a formal order withdrawing it. | The Court treated the Madras Full Bench decision as aligning with the Calcutta, Bombay and Allahabad view that attachment ends on dismissal; it relied on that strand and noted the Madras Full Bench set aside prior divergence. |
| T. Veeraswami v. P. Ramanna, AIR 1935 Mad 365 (Full Bench) | Full Bench Madras decisions on restoration and interim orders and the effect of dismissal/restoration. | Referred to by other courts and considered by the Travancore Bench in its reasoning; mentioned in the survey of authorities. |
| Raj Raghubar Singh v. Jai Indra Bahadur Singh, AIR 1919 PC 55 (Privy Council) | Principle that the extent of the obligation under a surety bond depends upon the language of the bond and surrounding circumstances. | Quoted with approval to show that surety obligations cannot be limited by general Code provisions unless the bond's language so requires; used to distinguish surety-bond issues from automatic statutory effects. |
| Chindha Rupla v. Chhaganlal Shivlal, AIR 1928 Bom 545 | Bombay High Court authority adopting the view that attachment ceases on dismissal. | Cited among the High Courts (Bombay, Calcutta, Allahabad, Rangoon) whose views were consistent with non-revival of attachment on reversal. |
| Gobinda Chandra Roy v. Abdul Rashid, AIR 1928 Cal 235 | When a suit abates on death of a party, an attachment before judgment was held to die with it. | Referred to as an illustration that attachments do not survive certain final events ending the suit. |
| Byamma v. Krishna Singh, 14 Mys. L.J 85 | Determined that an attachment before judgment does not become extinguished by reason of the dismissal of an execution application (O.21, R.57 not applicable to attachments before judgment). | Cited to show that some execution rules do not apply to attachments before judgment; part of the narrower issues discussed but not central to the present reference. |
| Soogoolal v. Hyder Sab, 14 Mys. L.J 140 | Similar to Byamma — attachment before judgment survives dismissal of execution application; O.21, R.57 does not apply. | Referred to in the discussion of related procedural questions; noted but not determinative of the reference. |
| 25 Trav LJ 320 | A Travancore authority canvassing the body of case law and expressing support for treating attachments similarly in certain restoration settings. | Was relied on by the Travancore-Cochin Full Bench in support of its contrary conclusion; the present Court considered and rejected that line of reasoning. |
| Nayudamma v. Sivaraju Dharmachand, AIR 1943 Mad 515 | Held that when a suit dismissed for default is restored to file it remains as on the day of dismissal and interim orders revive. | Discussed by the Travancore Bench and noted by this Court in its analysis of the issue of revival of interim orders upon restoration; the present Court distinguished the broader principle from the specific statutory wording of O.38 R.9. |
Court's Reasoning and Analysis
The Court conducted a methodical review of the problem by:
- Identifying the precise statutory provision implicated — Order 38, Rule 9 of the Code of Civil Procedure — which provides that where an order is made for attachment before judgment the Court shall order the attachment to be withdrawn when the defendant furnishes security required or when the suit is dismissed.
- Surveying conflicting precedents from several High Courts and prior benches of the same Court. Two strands emerged: (a) authorities (from Madras Full Bench, Calcutta, Allahabad, Bombay, Rangoon and several decisions of this Court) holding that an attachment before judgment necessarily ceases on dismissal of the suit and that no formal order is required to effect cessation because the duty to withdraw arises on the dismissal; and (b) contrary decisions (including the Travancore-Cochin Full Bench) holding that an attachment which ceased on dismissal revives if the dismissal is subsequently reversed and the plaintiff succeeds on appeal.
- Considering distinct but related issues concerning surety bonds executed in lieu of attachment. The Court noted that when security is furnished in place of attachment, the extent and duration of the surety's obligation depend upon the precise language of the bond; therefore surety-liability questions must be treated with reference to the bond terms (a principle endorsed by the Privy Council in Raj Raghubar Singh).
- Examining the reasoning of the Travancore-Cochin Full Bench (which had held that an attachment revives on reversal) and subjecting it to statutory analysis. The Court found that Order 38, Rule 9 contains no provision for automatic revival of an attachment that ceased on dismissal; the textual and structural reading of the Rules did not support the Travancore conclusion.
- Addressing policy and hardship arguments advanced in favour of revival: the Court acknowledged submissions that failure to revive an attachment could cause hardship to a plaintiff whose suit is later restored. It responded that adequate procedural remedies exist (e.g., applications to set aside ex parte orders and to seek restoration of the attachment or fresh orders for attachment under S.107(2) Civil P.C.), and that the possibility of hardship does not permit ignoring the express statutory language of O.38, R.9. The Court observed that attachments are interlocutory and extraordinary remedies and that it would be problematic to treat all interlocutory orders as automatically reviving on reversal.
- Reaching a conclusion by reference to precedent alignment: the Court noted that the decisions of this Court in 32 Mys. CCR 97, 7 Mys. L.J. 369 and 49 Mys. HCR 220 conform with the view taken by the major High Courts (Bombay, Calcutta, Madras Full Bench and Rangoon) that an attachment ends on dismissal and is not revived automatically on reversal. In view of this consistent body of authorities and the statutory wording, the Court declined to accept the Travancore-Cochin Full Bench view.
The Court therefore concluded that the first question referred should be answered in the negative: an attachment before judgment which ceases to be in force with the dismissal of the suit does not revive automatically when the decree dismissing the suit is subsequently reversed and a decree is passed for the plaintiff. Because of this answer, the second part of the reference (concerning retrospective effect from the original date of attachment) did not arise for decision.
Holding and Implications
Holding: The Court held that an attachment before judgment which ceased to be in force with the dismissal of the suit will not revive automatically when the decree dismissing the suit is subsequently reversed and a decree in the plaintiff's favour is passed; accordingly, the Court answered the reference in the negative.
Implications and direct consequences:
- The Full Bench rejected the Travancore-Cochin Full Bench's contrary conclusion and adhered to the existing line of authorities which treat an attachment as ceasing on dismissal under O.38, R.9 unless revived by appropriate orders (i.e., revival is not automatic on reversal).
- The Court emphasized that questions about a surety's continuing liability are governed by the precise language of the surety bond and surrounding circumstances; the Code does not itself extend or limit the scope of such bonds beyond their terms.
- The second part of the reference (whether, if revived, revival operates from the original attachment date) was not decided because revival was held not to occur; thus no ruling was made on retrospective effect.
- Procedurally, following the Full Bench opinion the Division Bench dismissed the appeal with costs on 28-1-1955 in accordance with that opinion; the decision had the direct effect of sustaining the view that a dismissal interrupts an attachment and that any re-imposition or fresh protection must be obtained by appropriate order or bond rather than by automatic operation upon reversal.
- No new broader precedent altering the existing statutory construction was created; the Full Bench reaffirmed the Court's prior stance and aligned with the majority of earlier High Court authorities.
K.S.B
Appeal dismissed.
Note: This summary is confined strictly to the matters and authorities that appear in the provided opinion. Where the opinion did not present distinct party arguments, a concise standardized note has been used in place of party-specific argument summaries.
1. In a suit on a pronote, the plaintiff obtained an attachment before judgment. The suit was dismissed in the trial Court. Subsequent to the dismissal of the suit the property was sold by the original owners to third persons. On appeal from the judgment of dismissal the suit was decreed and that decision was confirmed in the second appeal. In pursuance of the ultimate decree the properties which were attached before judgment in the trial Court were brought to sale and were purchased by strangers and the said sale having been confirmed, the properties were delivered by the Court to the purchasers. The material point on which the decision in this appeal turns is whether the attachment before judgment, which ceased with the dismissal of the suit, is revived, when the decision of dismissal is reversed by the superior Court. In 32 Mys. C.C.R 97 (A), it is laid down that
“the reversal of the judgment of dismissal on appeal does not operate to revive the attachment or the surety's liability in every case irrespective of the terms of the bond.”
2. In another case reported in 49 Mys. HCR 220 (B), this position is doubted by the observation that whether the view that an attachment before judgment would cease the moment the, suit is dismissed by tile Court of first instance according to the provisions of O. 38, R. 9, is correct or not….” Both these cases related to the continuing liability of the surety. In the present case, the question of continuing liability of the property attached is raised. This aspect came up directly for decision in a recent Full Bench case of the Travancore Cochin High Court (Vide — ‘Muhammad Abdul Khadir v. Padmanabha Pillai’, AIR 1952 Trav-C 414 (C)) where it was definitely laid down that
“an attachment before judgment which ceased to be in force with the dismissal of the suit, will revive when the decree dismissing the suit is subsequently reversed and a decree in the plaintiff's favour is passed even by the same Court or by a superior Court and this revival will be in force from the date on which the attachment before judgment is effected as provided for in the Code.”
3. In view of the conflicting decisions in the various High Courts, it is felt that the question is not free from doubt and as the Judges composing the Bench differ in their opinion it is referred for disposal by a larger Bench. The point of law is
“whether the attachment before judgment which ceased to be in force with the dismissal of the suit will revive when the decree dismissing the suit is subsequently reversed and a decree in plaintiff's favour is passed by the same Court or, by a superior Court and if revived whether the revival will be in force from the date on which the attachment before judgment is effected as provided for in the Code.”
4. In pursuance of the order of the Division Bench on 29-1-54 this appeal came on for hearing, the Court expressed the following opinion (18-12-1954):
Vasudevamurthy, J.:
5. This is a reference to the full Bench by Venkataramaiya and Balakrishnaiya JJ. The point of law referred to us is:
“Whether the attachment before judgment which ceased to be in force with the dismissal of the suit will revive when the decree dismissing the suit is subsequently reversed and a decree in plaintiff's favour is passed by the same Court or by a superior Court and if revived whether the revival will be in force from the date on which the attachment before judgment is effected as provided for in the Code.”
6. In a suit for recovery of monies due to him by defendant 4 on a promissory note, defendant 1 obtained an order of attachment before judgment of some immoveable properties and got them duly attached. His suit was dismissed by the trial Court and subsequent to such dismissal the suit property which was one of the items attached was sold by him to the plaintiff. On first appeal the suit was decreed and that decree was confirmed in a second appeal. In execution of that decree the properties which had been attached before judgment were brought to sale and the suit item was purchased in Court auction by defendant 2. In a suit by the plaintiff for declaration of his title and injunction it was contended that by reason of the prior attachment before judgment and the consequent court sale in favour of defendant 2, the plaintiff had derived no title by his purchase.
7. The earliest case in which the matter appears to have been considered by this Court is in 19 Mys. CCS 275 (B). where Chandrasekhara Aiyar anti Wallace JJ. held that the dismissal of a suit does not by itself operate as a release of an attachment before judgment, ordered in the course of me suit, and that such an attachment must be deemed to subsist unless and until it is expressly withdrawn by a further order of the Court. In that case the plaintiff's suit for recovery of money due on accounts was dismissed by the Munsiff, and on appeal decreed by the District Judge, who set aside the order of dismissal; and the point arose whether the attachment before judgment, which had been passed by the Munsiff, was available and operated as against a mortgage of the attached properties made by the defendants subsequent to the dismissal of the suit.
8. Chandrasekhara Aiyar, J. considered that the circumstance that S. 488 of the Code of 1882 which applied to that case (corresponding to O. 38, R. 9 of the new Code) no doubt made it obligatory on the Court to remove the attachment when the suit was dismissed. He, however, thought that provision seemed scarcely to warrant the conclusion that the attachment is to be deemed to have been removed even without an order of withdrawal and the circumstance that the Legislature had thought it necessary that a formal order of withdrawal should be passed tended rather to suggest that the attachment was intended to subsist till it should be formally withdrawn by an order. Wallace J. concurred with him and thought that if it was intended that the attachment should cease automatically on the furnishing of security or on the dismissal of the suit, the section would be worded in a manner similar to O. 21, R. 57, Civil P.C
9. The matter came up again for consideration in 32 Mys. CCR 97 (A), before a single Judge Doraswami Iyer J. In that case when the warrant of attachment before judgment was taken to the defendant he offered to give security. Thereupon the respondents executed a surety bond holding themselves liable for payment of the decree amount in case a decree should be passed in favour of the plaintiff. The warrant was, in those circumstances not executed and returned to the Court. The plaintiff's suit was later on dismissed by the Munsiff and has decision was confirmed in appeal by the Subordinate Judge of Shimoga. In second appeal, however, those judgments were reversed and a decree was passed in his favour. In the meantime the defendant applied, soon after the dismissal of the suit in the first Court, for the cancellation of the surety bond and obtained an order to that effect but without notice to the plaintiff.
10. Doraswami Iyer, J., while confirming the order of the Court below that the security bond had been properly cancelled, observed that the attachment would cease to have any effect as soon as the Court of first instance dismissed the plaintiff's suit; O. 38, R. 9 provided that where an order is made for attachment before judgment the Court shall order the attachment to be withdrawn when the defendant furnishes security required or when the suit is dismissed; and it had been held in several cases that the attachment would be treated as having come to an end on the dismissal of the suit though no formal order was made withdrawing the attachment since it is obligatory on the Court to withdraw the attachment on the dismissal of the suit.
11. In support of this conclusion he referred to — ‘Ramchand v. Pitam Mal’. 10 All 506 (E); — ‘Sasirama Kumari v. Meherban Khan’, 13 Cal LJ 243 (P); — ‘Abdur Rahaman v. Amir Sharif’, AIR 1918 Cal 39 (G) and — ‘Protap Chandra v. Sarat Chandra’, AIR 1921 Cal 101 (H). He observed further that the reversal of the judgment of dismissal on appeal does not operate to revive an attachment which had been so cancelled and referred to — ‘Shanker v. Ram Kishen’, AIR 1915 Lah 217 (I), and some other cases where it has been held that when a property is attached before judgment or when a surety on behalf of the defendant makes himself personally liable and pledges property by way of security so as to save the defendant from attachment of his property, the attachment of the defendant's property or the liability of the surety in person or property, as the case may be, comes to an end if the first Court dismisses the suit and thereupon the surety's person and property cease to be liable in any way. He also observed that the liability of a surety under a bond which is but a substitution for the attachment before judgment and which really takes its place stands on the same footing. 19 Mys CCR 275 (D) was not brought to his, notice when he decided this case so that when a similar matter arose before him he referred the matter for opinion of a full Bench consisting of himself, Sreenivasa Iyer and Rarnachandra Rao JJ. in 7 Mys. L.J 369 (J).
12. It was held by the full Bench in 7 Mys. L.J 369 (J), that the decision reported in 19 Mys. CCR 275 (D), was not correct in view of the provisions of O. 38, R. 9, Civil P.C Doraswami Iyer C.J wrote the leading judgment with which the other two Judges concurred and he again relied on the cases already referred to by him in 32 Mys. CCR 97 (A), i.e of the Allahabad and Calcutta High Courts and to the case reported in — ‘D. Manackjee v. R.M.N Chettyar Firm (1)’, AIR 1927 Rang 310 (K). He noticed that in Madras the trend of authorities had not been uniform and in that connection referred to — ‘Subbarama Iyyar v. Somalinga Subba Ayyar’, AIR 1925 Mad 114 (L); — ‘Namagiri Ammal v. Muthu Velappa Goundan’, AIR 1928 Mad 940 (M) and — ‘Seethai Ammal v. Narayana Ayyangar’, AIR 1928 Mad 976 (N). In the last case Madhavan Nair and Jackson JJ. had held that an attachment before judgment automatically terminated with the dismissal of the suit as contrasted with the view taken in AIR 1928 Mad 940 (M), by Phillips and Devadoss JJ.
13. In 49 Mys. HCR 220 (B), the plaintiff obtained an order of attachment before judgment and certain moveable properties of the defendant were attached. The attachment was subsequently raised on security being furnished. The suit was decreed in the trial Court, reversed in the first appellate Court and decreed again in the High Court in second appeal. On the surety, who was sought to be proceeded against, raising an objection that by the dismissal of the suit in the first appellate Court his liability ceased in accordance with the language of O. 38, R. 9, Civil P.C Venkataramana Rao C.J and Singaravelu Mudaliar J. held that the terms of the bond by which the surety had undertaken to pay if a decree was passed against the defendant as prayed for in the plaint were general and that there was nothing in the language of the bond to confine the operation of those words to a decree to be passed by the Court of first instance. The obligation secured under a security bond would always depend upon the language of the bond; and by the bond before them the appellant had bound himself to satisfy any decree that may ultimately be passed against the defendant. That decision was therefore based on the terms of the surety bond.
14. In the course of their judgment Venkataramana Rao C.J referred to the cases decided by this Court (sic) in 32 Mys. CCR 97 (A); AIR 1927 Rang 310 (K) and — ‘Balaraju Chettiar v. Masilamani Fillai’, AIR 1930 Mad 514 (F3) (O). He observed that in the last of the cases it was decided by the Full Bench that an attachment before judgment in a pending suit came to an end when the suit was dismissed and it was not revived on the appellate Court setting aside the dismissal, which conclusion was based upon the language of O. 38, R. 9. The learned Chief Justice also referred to — ‘T. Veeraswami v. P. Ramanna’, AIR 1935 Mad 365 (FB) (P), and observed:
“With due respect to the learned Judges (who decided AIR 1935 Mad 365 (FB) (P)), we are not able to appreciate the distinction suggested between a suit dismissed after trial and a suit dismissed for default when construing the provisions of O. 38, R. 9, Civil P.C The language of O. 38, R. 9 is general and would cover both a case of dismissal on merits and a case of dismissal for default.”
15. He distinguished the case before them from the case in 32 Mys. CCR 97 (A), however, on the ground that the language of the surety bond in the latter case may have warranted the view taken in that case about the liability of the surety and cited with approval the observations of the Privy Council in — ‘Raj Raghubar Singh v. Jai Indra Bahadur Singh’, AIR 1919 PC 55 (Q), to the effect that the extent of the obligation under a surety bond would always depend upon the language of the bond as construed with reference to the surrounding circumstances. He further observed that it was open to a surety to undertake a limited or wider obligation and there was nothing in the Code of Civil Procedure which limited the extent or scope of such an obligation. Order 38, R. 9 of the Code in terms did not apply to a case of a surety bond executed in pursuance of an order under O. 38, R. 5 of the Code.
16. Referring to the observation of Doraswami Iyer C.J in 32 Mys. CCR 97 (A), that the attachment of a defendant's property or the liability of a surety in person or property comes to an end if the first Court dismisses the suit and that thereupon the surety's person and property cease to be liable in any way, he pointed out, that the view that whenever a surety bond is given under the provisions of O. 38 it really takes the place of an order of attachment before judgment was not warranted by the provisions of that order; whether the view that an attachment before judgment would cease the moment the suit is dismissed by the Court of first instance, according to the provisions of O. 38, R. 9, is correct or not would not warrant the view that the obligation undertaken by the surety comes to an end when the suit is dismissed by the Court of first instance. He thought that to import the provisions of O. 38, R. 9 in interpreting the provisions of a surety bond given for purposes of raising an attachment before judgment and to limit the obligations secured thereunder did not appear to him to be correct. Their Lordships were not therefore called upon and did not decide in that case whether an attachment before judgment would cease on the dismissal of a suit, and nowhere in the course of his judgment has the learned Chief Justice expressed himself to the contrary.
17. In AIR 1930 Mad 514 (FB) (O), the Madras High Court have set at rest the earlier differences of opinion in that Court and decided overruling AIR 1928 Mad 940 (M), that upon a dismissal of a suit an attachment before judgment necessarily ceases under O. 33, R. 9, Civil P.C even though the Court does not pass an order withdrawing it. In the course of the judgment the learned Judges point out that the duty to withdraw the attachment order when the suit is dismissed is one thrown directly on the Court and that no application from a party was necessary. They refused to accept the contention, that all property attached whether moveable or immoveable, was in the custody of the Court and that therefore it could not be released from attachment without an order of the Court. The same view has been taken by the Allahabad High Court in 10 All 506 (E), and by the Calcutta High Court from so far back as 9 Ind Cas 918 (Cal) (F) and AIR 1918 Cal 39 (G), by the Bombay High Court in — ‘Chindha Rupla v. Chhaganlal Shivlal’, AIR 1928 Bom 545 at p. 547 (R), and by the Rangoon High Court in AIR 1927 Rang 310 (K). In — ‘Gobinda Chandra Roy v. Abdul Rashid’, AIR 1928 Cal 235 (S), when tile suit had abated and come to an end on the death of a party, an attachment before judgment was held to die with it.
18. The present reference has been made in view of the decision in AIR 1952 Trav-C 414 (FB) (C). The reasons expressed in it were apparently pressed upon the Division Bench as justifying a reconsideration of the view taken by our Court. Three questions arose for consideration in that case: (1) Whether an attachment before judgment which ceases to be in force with the dismissal of the suit, will revive when the decree dismissing the suit is subsequently reversed and a decree in the plaintiff's favour passed? (2) Whether an attachment which had been effected in execution of a decree and which should be deemed to have been raised with the setting aside of that decree would revive when a decree was subsequently passed in favour of the plaintiff? and (3) Whether an attachment before judgment shall cease to be operative when the execution application seeking to execute a decree pursuant to that attachment is dismissed for default of the decree-holder as contemplated in O. 21, R. 57, Civil P.C Tile two latter points do not arise for consideration in the present reference, but it might be mentioned that it has been decided in — ‘Byamma v. Krishna Singh’, 14 Mys. L.J 85 (T) and — ‘Soogoolal v. Hyder Sab’, 14 Mys. L.J 140 (U), that an attachment before judgment does not become extinguished by reason of the dismissal of an application in execution asking for sale of the attached property and O. 21, R. 57, Civil P.C cannot be held to apply to an attachment before judgment.
19. Their Lordships of the Travancore-Cochin Court answered the first question in the affirmative. In that Court there was already some support for that view in 25 Trav LJ 320 (V), wherein the whole case law including the ruling in AIR 1930 Mad 514 (O), had been considered and opinion expressed that there was no reason why there should be any difference in the effect of attachment whether before or after judgment in a case where the claim petition was allowed and later on that order was reversed in a suit and a case where the suit was dismissed and restored to file and subsequently decreed. They also relied on the full Bench decision of the Madras High Court in AIR 1935 Mad 365 (P), referred to in 30 CLR 510 (W) and — ‘Nayudamma v. Sivaraju Dharmachand’, AIR 1943 Mad 515 (X), where it was held that when a suit dismissed for default was restored to file, the suit remained as it was on the day when it was dismissed and all interim orders till the disposal of the suit would revive.
20. The decision in the full Bench case of the Travancore-Cochin High Court is based mainly on a comparison of the incidents attendant upon the allowing of a claim under O. 21, R. 60, Civil P.C and the revival of that attachment as a result of a decision is a suit under O. 21, R. 63. The actual words of O. 21, R. 60 and O. 21, R. 63 really lend no support to their Lordships conclusion. O. 21, R. 58 provides for an investigation of claims and objections to attached property. Order 21, R. 60 provides that where upon the said investigation the Court is satisfied that for the reasons stated in the claim or objection the property was not, when attached, in the possession of the judgment-debtor or of some person in trust for him shall make an order releasing the property wholly or to such an extent as it thinks fit from attachment. Order 21, R. 63 expressly provides that where a claim or objection is preferred the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute but subject to the result of such suit, if any, the order shall be conclusive.
21. Under O. 38, R. 8 where any claim is preferred to property attached before judgment, such claim shall be investigated in the manner provided in O. 21, R. 58 for the investigation of claims of property attached in execution of decrees. But there is no provision in R. 9 which provides that once an attachment before judgment has ceased when the suit is dismissed, and whether it is followed by an order withdrawing the attachment or not, the same will be revived when the suit once so dismissed is decreed again and restored to file on appeal, review or otherwise.
22. It is contended that an automatic cessation of an attachment before judgment, immediately a suit is dismissed, particularly for default, if it is not followed by its revival when the suit is subsequently restored to file or decreed, involves great hardship on the plaintiff and that the hardship on an alienee who has acquired rights in the property subsequent to such dismissal and before the suit is revived is not either more or different than that of an alienee who has acquired an interest subsequent to the raising of an attachment under O. 21, R. 60 and its reimposition under O. 21, R. 63. In 7 Mys. L.J 369 (J), Doraswami Iyer C.J has pointed out that there is no such undue hardship involved because it was open to the plaintiff to apply for the setting aside of the ex parte order of withdrawal of attachment in the same way in which he may apply for setting aside an ex parte order of dismissal and he may do both simultaneously and observed that there was nothing to prevent a Court while restoring a suit to file to restore also an attachment without the plaintiff being driven to go through all the required formalities for restoring the attachment also. An attachment before judgment is in the nature of an interlocutory order. It is an extraordinary relief granted to a plaintiff even before his claim is adjudicated upon and found to be true and if a suit is dismissed either for default or on its merits by the trial Court and the attachment before judgment has therefore to cease, he can certainly have not as much grievance as a person who has obtained a decree and attached property of the judgment-debtor whose right to attached property has been questioned and decided in summary proceedings and which are made expressly subject to a decision in a regular suit. Moreover it cannot also be urged that all interlocutory orders like say those passed on applications for temporary injunction the operation of which would have to cease on the dismissal of a suit, would automatically be revived or can be deemed to be in force without any further orders by an appellate Court or by the same Court after the suit is dismissed. To hold so would lead to obvious and real difficulties. It is not also as though the plaintiff in such a case has no remedy. He could always apply to the same Court if a suit which has been dismissed for default is restored to file or to an appellate Court which has also ample powers to grant an order of attachment before judgment under the provisions of S. 107(2), Civil P.C In any event the possibility of hardship cannot warrant the ignoring of the express provisions of O. 38, R. 9 by which it is specifically laid down that an attachment before judgment shall cease by the dismissal of a suit. As observed by Mahmood J. in 10 All 506 (E), all interim orders cannot survive the pendency of the main litigation.
23. The decisions of this Court in 32 Mys. CCR 97 (A); 7 Mys LJ 369 (J) and 49 Mys. HCR 220 (B), have been in accordance with the views of the High Courts of Bombay, Calcutta, Madras and Rangoon. With great respect to the learned Judges who decided this point in the Puli Bench case of the Travancore-Cochin High Court we are unable to agree with their view to the contrary. We see therefore no reason for re-considering the view already taken by our High Court and would answer the first part of the reference accordingly in the negative. The second part of the reference does not therefore arise. (After the opinion of the Full Bench the case again went back to the Division Bench who on 28-1-55 dismissed the appeal with costs in accordance with that opinion.)
K.S.B
Appeal dismissed.
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