Sulaiman and Kanhaiya Lal, JJ.
1. This is a plaintiff's appeal arising out of a suit for sale on the basis of a mortgage deed, dated the 8th 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 8th of January, 1909, in favour of Bohra Akhey Earn, the present appellant. On the 5th of March, 1909, Basant Lal's suit was ultimately decreed. He put in an application for execution on the 14th 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 19th of July, 1909, which also was dismissed on the 23rd 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 12th of July, 1909, the previous attachment ceased to exist. In support of this contention it is urged that Order XXI, Rule 57, of the Code of Civil Procedure 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.
4. It is to be noted that prior to the coming in force of the new Act, there used to be some doubt as to the continuance of an attachment when the execution cases were struck off or removed from the file. In order to put an end to such doubts, Rule 57 has been added in Order XXI. As the rule stands, it professedly applies to a case where a property has been attached in execution of a decree. Unless, therefore, there is some other provision in the Code which makes this rule applicable to attachments before judgment, this new rule would not be applicable to such attachments. It is, therefore, contended on behalf of the plaintiff that by virtue of the provisions contained in Rule 7 of Order XXXVIII, the above-mentioned rule is applicable to attachments before judgment also. This contention we are not prepared to accept. Under Order XXXVIII, Rule 7, the attachment before judgment is to be made in the manner provided for the attachment of property in execution of a decree. That rule clearly refers to the mode of the attachment and not to the way in which that attachment ceases. It is Rule 9 of Order XXXVIII which provides as to how and when the attachment before judgment is to cease. Under that rule if a suit is dismissed or if the defendant furnishes security, the court is to withdraw the attachment. We are, therefore, of opinion that it is not possible to extend the provisions of Order XXI, Rule 57, to cases of attachment before judgment.
5. The attachment before judgment would have been subsisting, even though no application for execution had been made up to the date when the mortgage was effected. The attachment was clearly to enure for the benefit of the plaintiff decree-holder till his remedy became absolutely barred. Under the circumstances, we see no good ground for holding that the attachment which had been subsisting prior to the application necessarily came to an end when that application was dismissed.
6. There are several cases in support of the view which we have taken. We may refer to the cases of Ganesh Chandra Adah v. Banwari Lal Roy (1912) 14 Indian Cases 345, Kosuri Suraparaju v. Mandapaka Narasimham (1914) 26 Indian Cases 81, Banuddin Sahib v. Arunachala Mudali (1913) 26 M.L.J. 215 and, lastly, the Madras Full Bench case of Venkatasubbiak v. Venkata Scshaiya (1918) I.L.R. 42 Mad. 1. In all these cases it has been laid down that Order XXI, Rule 57, does not apply to attachments before judgment, but its operation is confined to attachments in execution of a decree. With that view we fully agree.
7. The learned advocate for the plaintiff appellant has relied on the case of Sewdut Roy v. Sree Canto Maity (1906) I.L.R. 33 Calc. 639 (643). That case, however, is clearly distinguishable because, in the first instance, it was a case under the old Act which contained no express provision like the one contained in Order XXI, Rule 57. The remark of Woodroffe, J., has to be understood with reference to the facts of the case as were then before him, and cannot be said to have decided the point which arises in the present case. The second case on which reliance is placed is the case of Ganpati v. Mukunda (1921) 63 Indian Cases 712. This case is certainly a direct authority in favour of the plaintiff. The learned Judicial Commissioner came to the conclusion that there was no good reason for not applying Order XXI, Rule 57, to attachments before judgment. The main ground relied upon by him was that as rules like 55 and 56 of Order XXI did apply, there was no justification for not applying Rule 57. We have, however, already pointed out that under Order XXXVIII, Rule 7, the mode of attachment before judgment has to be the same as that for the attachment in execution of a decree, but that rule does not refer to the way in which attachments come to an end. There is no doubt that there is a clear preponderance of authority in favour of the view we have taken. We accordingly uphold the decree of the court below and dismiss the appeal with costs.