Gurnam Singh, J.
1. This Letters Patent appeal is directed against the judgment of Rajendra Nath Mittal, J., vide which the appeal filed by the appellant has been dismissed.
2. The facts of the case, briefly stated, are that M/s. Bharat Timber Store, Jhajjar Road, Rohtak, respondent No. 1 had filed a suit against Raghubir Singh, respondent No. 2 and the Senior Sub-Judge, Rohtak decreed that suit for the yeum of Rs. 2,602,75 Ps. on 19-8-1963.
During the pendency of the suit, the Senior Sub-Judge had sent an intimation to the Sub-Divisional Officer, P.W.D., B. & R. Bhiwani, that the amount lying with him and payable to Raghubir Singh contractor, shall not be paid to him, till further orders of the Court. On the request of the decree-holder, the papers for the recovery of the decretal amount were sent to the Addl. District Judge, Hissar, who entrusted the same to the Senior Sub-Judge, Hissar for necessary proceedings. The Senior Sub-Judge, Hissar, dismissed the execution application in default on 3rd of Oct., 1964, but restored the same on the same day.
3. The Sub-Divisional Officer, P.W.D. B, & R., Bhiwani paid Rs. 3,574.27 Ps. to Raghubir Singh on different dates between 19-5-1965 to 23-5-1965, in spite of the order restraining him to make any payment to him (Raghubir Singh). Notice was issued to the Public Works Department, B. & R., Haryana (hereinafter referred to as the Department) for the payment of the amount attached. The Department took up the plea that the execution application had been dismissed in default on Oct. 3, 19,64 and, therefore, the attachment, if any had ceased to exist and it wag not liable to pay any amount. The Executing Court, holding that the attachment had revived on the restoration of the Execution Application, ordered the Department to make the payment. The State of Haryana filed an appeal, which was heard 'by the learned Additional District Judge and it was held that in view of the undertaking given by the Department, its liability would continue in spite of the fact that the execution application was dismissed in default and consequently the apspeal was dismissed. Feeling aggrieved with the judgment of the Additional District Judge, Hissar, the State filed an appeal in this Court and that also failed.
4. The learned Senior Deputy Advocate General, Haryana, vehemently contended that the order of the trial Court directing the Sub-Divisional Officer, P.W.D., B. & B., not to make payment to K-aghubir Singh was an injunction under Order 39, Rule 1, Civil P.C. (hereinafter referred to as the Code) and if any default had been made, action could be taken against the defaulting officer under Order 39, Rule 2-A of the Code. He further pointed out that Order 21, Rule 52 of the Code is not applicable in this case. Further according to the learned Sr, Deputy Advocate General, Haryana, the order of attachment had ceased to exist under Order 21, Rule 57, of the Code, after the execution application had been dismissed in default.
5. The provisions of Order 21 of the Code relate to the execution of decrees and orders. Under Order 21, R, 52 of the Code, where a property to (be attached, is in the custody of a public officer, its attachment has to be made by a notice to such officer requesting that such property may be held subject to further orders of the Court. The conditional attachment of the property of the defendant at the stage of the suit, is ordered under Order 38, Rule 5 of the Code. Rule 7 of Order 38 of the Code is to the effect that save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree. It follows that if any property of the defendant, which is in the custody of an officer, is to be attached, the recourse had to be taken under Order 21, Rule 52 of the Code. In the instant case, the trial Sub-Judge informed the Sub-Divisional Officer, P.W.D., B. & R. that he should not make any payment to Raghubir Singh contractor till further orders from the Court. Thus it is a case of attachment of the property of the defendant before judgment in the suit and not a case of temporary injunction,
6. Undisputedly the execution application was dismissed in default on 3-10-1964, but it was restored on the same day. It is also not disputed that again the execution application was dismissed on 21-5-1966. The Department made payments to Raghubir Singh partly on 19-1-1965 and partly on 22-3-1965 and 23-3-1965. Now it is to be seen as to what is the effect of dismissal of execution application in default on 3-10-1964. The learned senior Deputy Advocate General Haryana, contended that the attachment had ceased to exist. He relied upon Venkata Rao v. Surya Rao Bahadur Garu, AIR 1950 Mad 2, in which it was held that the dismissal of execution application carries with it the penal consequences provided in Order 21, Rule 57 of the Code. It has further 'been observed therein that:--
'When once the Court dismisses the application for default of the decree-holder the Court has no power to continue the attachment as it would be opposed to the mandatory provision in the rule that on the dismissal of such application the attachment shall cease.'
He also relied on Kangayya Naidu v. Jayamangala Reddeyya, AIR 1960 Andh Pra 634, in which it has been observed as under:--
'Attachment before judgment is also governed by Order 21, Rule 57, since the property attached in execution within the ambit of Order 21, Rule 57, includes property attached before judgment where there has been a decree followed by execution petition for the purpose of bringing the attached property to sale.'
The Senior Deputy Advocate General, Haryana, also cited Meyyappa Chettiar v. Chidambaram Chettiar, AIR 1924 Mad 494 (FB) wherein it has been held that:
'The provisions of Order 21, Rule 57 apply to an attachment before judgment which is converted into an attachment in execution when the decree passed in the suit is sought to be executed.'
7. The learned counsel for the respondents urged that Order 21, Rule 57 of the Code applies only where the property has been attached in execution of a decree and not in cases where the property is attached during the pendency of the suit. In support of his contention he cited Abdul Hamid v. Mst. Asghari Begum, AIR 1953 All 175 (FB), wherein it has been held by the Full Bench that:--
'The provisions of Order 21, Rule 57 do not apply to attachments effected before judgment, consequently, on the dismissal of an execution application for default of the decree-holder, the attachment before judgment does not cease.'
Further he relied upon Valli Ammal Arumughom Ammal v. Narayan Panicker, 'AIR 1963 Ker 16 (FB) wherein it has been observed that:--
'Order 21, Rule 55 (Travancore) speaks of property 'attached in execution' and it cannot be held that an attachment before judgment comes within the ambit of the rule. Order 36, Rule 11 (Travancore) does not mean that an attachment before judgment is transformed into an attachment in execution and should be deemed as such for the purposes of Order 21, ft. 55. The rule no doubt dispenses with the necessity for an attachment in execution, but the rule does not make an attachment before judgment an attachment in execution.'
8. On this point there is a conflict of judicial opinion amongst the High Courts. Chitaley in the AIR Commentary of the Civil P. C., Vol. 3 at page 399 sums up the controversy as follows:--
'There is a conflict of judicial opinion as to the effect of an order of dismissal of an execution application under this rule upon attachment effected before judgment. The High Courts of Allahabad, Calcutta, Patna, Madhya Bharat, Kerala and Assam have held that the present rule applies only to cases where the property is 'attached in execution of a decree' as the rule itself expressly states, and that consequently, the dismissal of an execution application for default does not put an end to the attachment be^ fore judgment. The High Courts of Madras, Andhra Pradesh, Madhya Pradesh, Orissa, Mysore and the Judicial Commissioner's Court of Nagpur and the Chief Court of Sind have, on the other hand, taken a contrary view. According to them, the words 'any property attached in execution of a decree' should be construed as meaning 'where property has been in a state of attachment in execution' and the decree-holder by electing to take the 'benefit of Order 38, Rule 11 and proceeding to execute the decree without a fresh attachment is, in effect, asking the Court to treat the attachment as one in execution; the attachment before judgment therefore ceases upon the dismissal of the application for execution.'
9. In Baijnathpraead Jagannath Chattapure v. Goswami Rameshpuri Guru Maheshpuri Gosai, AIR 1955 Nag 41, a D. B. judgment, it has been held that:
'The effect of setting aside the dismissal Tinder Order 21, Rule 57, is to restore the 'status quo ante' provided the rightsof third parties acquired subsequent to the dismissal are not affected.'
In Rameshwar Prasad Singh v, Basdeo Singh, AIR 1936 Pat 126, it has been held that the effect of setting aside the order of dismissal for want of prosecution results in the revival of the attachment In Bankim Chandra v. Chandi Prasad, AIR 1956 Pat 271, it has been held that:
'Therefore, once a suit or appeal dismissed for default, is restored by the order of the Court, all ancillary orders passed in the suit or appeal before its dismissal also revive and operate sines that date with all their legal implications unless there is any other factor on the record or in the order passed to show to the contrary.'
10. The words 'attached in execution of a decree' in Order 21, Rule 57 clearly indicate hat the attachment before judgment does not come within the ambit of this rule. Further Order 38, Rule 11 of the Code is very clear. It says that 'where' property is under attachment by virtue of the provisions of this order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree, to apply for reattachment of the property'. The language of Order 21, Rule 57 of the Code, in which the expression used is 'in execution of a decree' makes the whole matter clear that the provisions of that rule do not extend to cover attachments effected before judgment. We, therefore, agree with the finding of the learned single Judge that the principle enunciated in Order 21, Rule 57 of the Code will not be applicable in this case and the attachment before the decree stands revived even in spite of the fact that the execution application was dismissed in default on 3-10-1964. The second order of dismissal in default has no effect in this case, as the payments had been made by the Sub-Divisional Officer, P.W,D., B. & R., to Raghubir Singh earlier to that order. The result is that this appeal fails and is dismissed with costs.