M. S. Menon, C. J.
1. This is an appeal by the appellant in S. A. No. 107 of 1958. The appeal is filed in pursuance of a declaration granted under Section 5 of the Kerala High Court Act, 1958. The judgment under appeal has been reported in Arumugham Ammal v. Nayinar Paniker, 1961 Ker LT 597 : (AIR 1962 Kerala 60).
2. The appellant was the 3rd defendant in O. S. No. 1541 of 1121 of the 2nd Additional District Mun-siff's Court of Trivandrum -- the suit from which this appeal arises -- and the appellant in A. S. No. 173 of 1956 of the District Court of Trivandrum. The suit was by the 1st respondent before us. It was to set aside Ext. E, an order under Order 21, Rule 94, of the (Travan-core) Code of Civil Procedure, 1100 (Order 21, Rule 97of the (Indian) Code of Civil Procedure, 1908). The decision was against him, and it was affirmed by the HighCourt of Travancore by Ext. F dated 9-12-1121.
3. The rate of the appeal depends solely on the true scope and ambit of Order 21, Rule 55 of the (Travancore) Code of Civil Procedure 1100:
'Where any property has been attached in execution of a decree but by reason of the decree-holder's default the Court is unable to proceed further with the application for execution it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application, the attachment shall cease unless the Court expressly directs that it shall continue in force' and it is hence not necessary to restate the facts summarised in 1961 Ker L. T. 597 : (AIR 1962 Kerala 60). It is common ground that if an attachment before judgment does not cease to be operative on the dismissal of an application for execution by reason of the default of the decree holder, then the appellant must succeed and the appeal has to be followed.
4. Order 21, Rule 55 of the (Travancore) Code ofCivil Procedure, 1100, corresponds -- in all mattersmaterial to this case -- to Order 21, Rule 57, of the (Indian) Code of Civil Procedure, 1908, The question as to whether an attachment before judgment comes withinthe scope and ambit of the rule has been the subjectof controversy among the High Courts in this country.
5. Chitaley 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, Patnaand Madhya Bharat have held that the present rule appliesonly to cases where the property is 'attached in execution of a decree' as the rule itself expressly states, and thatconsequently, the dismissal of an execution application,for default does not put an end to the attachment before judgment. The High Courts of Madras and Travancore-Cochin, the . Judicial Commissioner's Court of Nagpur and the Chief Court of Sind have, on the ether 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 freshattachment is, in effect, asking the Court to treat the attachment as one in execution; the attachment beforejudgment therefore ceases upon the dismissal of the application for execution'.
(C.P.C., 6th Edition, Vol. 3, Page 3044).
6. Order 21, Rule 55, speaks of property 'attached in execution' and we find it impossible to hold that an attachment before judgment comes within the ambit of the rule. All that Order 36 Rule 11, of the (Travancore) Code of Civil Procedure, 1100 (Order 38, Rule 11, of the (Indian) Code of Civil Procedure, 1908) says is :
'Where property is under attachment by virtue of the provisions of this Order and a decree is subsequentlypassed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property'.
This 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, Rule 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.
7. This is th^ view adopted by Sulaiman and Kanhaiya Lal, JJ., in. Akhey Ram v. Basant Lal AIR 1924 All 860, That decision was fallowed in Abdul Hamid v. Mst. Asghari Begum AIR 1953 All 173 (FB). In the latter case Kaul J., with whom the other Judges agreed, pointed out that there was no ambiguity either in the language of Order 21, Rule 57, or in the language of Order 38, role 11, and said :
'With the greatest respect I am unable to accept the view taken by some High Courts that 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'. To put such a forced and artificial construction upon the plain language of the statute is wholly without justification'.
8. In Shibnath Singh v. Saberuddin Ahmed AIR 1929 Ca! 465 Rankin, C. J., considered the wording and history of Order 21, Rule 57, and said:
'It seems reasonably clear to me that it is no part of the intention of this rule to say that an attachment before judgment, which existed before any application could be made in execution, and which prima facia would continue to have effect if no application for execution had been made, should fall to the ground merely because a subsequent application for execution has come to nothing'. The Chief Justice then quoted Order 38, Rule 11, and observed as follows : 'From this it is contended that, upon an application for execution being made, the attachment before judgment becomes an attachment in execution and nothing more so as to be subject to all the infirmities of an attachment in execution. Doctrines of merger and other theories are ingrafted upon the simple language of the Code that it shall not be necessary to reattach. By reason of this provision no execution based upon an attachment before judgment can be distinguished in validity or character from an execution unless indeed some particular enactment can be seen to be addressed to this distinction. There is, however, nothing in Rule 11, Order 38 to give colour to the view that for the purposes of Rule 57, Order 21, 'attached in execution' is a phrase which covers attachment De-fore judgment'.
To the same effect is Ayezali Mir v. Mahanandabarul AIR 1949 Cal 320.
9. In Motijha v. Jowala Prasad Marwari AIR 1937 Pat 626 the court held that the language of Order 21, Rule 57, is abundantly clear and said :
'It is to be noticed that the Legislature has used the words 'the attachment shall cease'. In our opinion the words 'the attachment' must mean the attachment referred to above, that is to say the attachment in execution of the decree'.
The latest case adopting the view expressed by the Allahabad, Calcutta and Patna High Courts to which our attention has been drawn is Dungarmall Agarwalla v. Amiya Kumar AIR 1961 Assam 96.
10. As already indicated in paragraph 6 above we find it impossible to accept any view other than the one adopted by the High Courts of Allahabad, Calcutta, Patna and Assam either when we read Order 21, Rule 57, in isolation or when it is read in conjunction with the provisions of Order 38, Rule 11. The contrary view is embodied in Meyyappa Chettiar v. Chidambaram Chettiar, AIR 1924 Mad 494 and Muhammad Abdul Khadir v. Padmanabha Pillai 1952 Ker LT 264 : AIR 1952 Tra-Co. 414 (FB), two decisions which between them operated over the whole of this State. It is with the greatest respect, and with the greatest reluctance, that we differ from those decisions. We do so only because we find it impossible to adopt any other course in this matter.
11. In the light of what is stated above the appeal has to be allowed and we do so, though in the circumstances of the case without any order as to costs.