T.C. Raghavan, J.
1. The question of law raised in this second appeal is regarding the effect of the dismissal of an Execution Petition for the default of the decree-holder on an attachment before judgment. Both the lower Courts have held that the dismissal for default of the Execution Petition has vacated the attachaient prior to the decree and the second appeal questions the correctness of the aforesaid decision.
2. The appellant before me was the 3rd defendant in the suit, which was for declaration of title to the suit property and for setting aside a summary order passed in a claim-proceeding. The suit property originally belonged to one Muniyandi Pillai and one Kumaraswami Pillai and the same was outstanding on a mortgage from them, which mortgage right was purchased by the 2nd defendant. The plaintiff purchased the equiry of redemption from the original owners trader Ex. B on 7th Meenam 1116 ME. The 1st defendant obtained a decree for arrears of rent against the original owners in 1112 and the suit property was attached before judgment in that suit at the instance of the 1st defendant. After the decree against the original owners for arrears of rent, the 1st defendant filed an execution petition for personal execution on 17th Midhunam, 1118. Notice therein was returned unserved and the execution Court directed the decree-holder to furnish proper address and also to pay process fees. This direction not having been complied with, the execution petition was dismissed on 15th Chingom, 1119. Thereafter the decree-holder filed another execution petition with a prayer for the sale of the property already attached before judgment and the Court directed the decree-holder to show how the attachaient was still subsisting.
The decree-holder filed a memo into Court alleging that the attachment before judgment was still in force snce the decree had not been set aside; but the Court ordered that the decree-holder should apply for attaching the property again and adjourned the Execution Petition to 27th Makaram 1119, on which date also the decree-holder filed a petition alleging that the attachment was still subsisting. But the Court considered that the attachment was not subsisting and consequently directed the decree-holder to re-attach the suit property; which direction not having been complied with, that Execution Petition was also dismissed on 19th Kumbhom, 1119. Finally, the decree-holder filed a third execution petition on 17th Edavam, 1119, in which the suit property was proclaimed and sold without a fresh attachment. In pursuance of that sale the decree-holder, who is the 1st defendant in the present proceeding, applied for delivery of possession of the property, when the plaintiff 1st respondent before me obstructed and filed a claim petition. The execution Court dismissed the claim petition of the plaintiff and ordered delivery of the property to the decree-holder 1st defendant. The suit, out of which the second appeal arises, has been thereafter filed to set aside that order and declare the title of the plaintiff. It may be mentioned at this stage that the 3rd defendant-appellant is the purchaser from the 1st defendant, so that if the 1st defendant himself has obtained no title to the suit property under the court sale, then the 3rd defendant's second appeal will necessarily fail.
3. Mr. T. N. Subramonia Iyer, the appellant's learned advocate, contends that by the dismissal of the first execution petition on 15th Chingom, 1119, the attachment before judgment does not ipso facto cease. The argument of the learned counsel is two-fold. Firstly, he contends that the dismissal of an execution petition for the default of the decree-holder does not terminate an attachment before judgment, but vacates only an attachment in execution. Secondly he urges that, even if the dismissal of the execution petition for the default of the decree-holder terminates the attachment prior to judgment, that resuit can follow only in a case where the execution petition which has been dismissed is for the sale of the property attached before judgment and the penal resuit of the attachment dropping to the ground cannot resuit in a case where the execution petition which is dismissed for default is only, as in the present case, for Personal execution against the judgment-debtor.
4. On both the points I am inclined to hold against the contentions of the learned advocate of the appellant.
5. On the first question there is considerable difference of judicial opinion among the various High Courts in this country; the Madras, Bombay, Travancore-Cochin and Andhra Pradesh High Courts taking one view, namely that there is no difference between an attachment before judgment and an attachment in execution in this regard, and the Allahabad, Patna, Calcutta and some other High Courts taking a contrary view, that the penal consequence contemplated by Order 21, Rule 57 applies only to attachment in execution and not to attachment prior to judgment. Several decisions for both the positions have been cited before me and after consideration of those decisions I am inclined to accept the former view expressed by the Madras, Bombay, Travancore-Cochin and Andhra Pradesh High Courts as the better view. I may also add at this stage that a Division Bench of this Court has approved and followed the decision of the Travancore-Cochin High Court, though without any discussion, in an unreported decision in Varghese Varghese v. Kunuthommi Thomas S. A. No. 399 of 1956 (E) (TC).
6. I shall only refer to three or four relevant decisions on this question. The line of reasoning adopted by the Allahabad and the other High Courts taldng the latter view is indcated in the Full Bench decision of the Allahabad High Court in Abdul Hamid v. Asgari Begum, AIR 1953 All 178and the reasoning of the minority judgment of the Full Bench of five Judges of the Madras High Court in Meyyappa Chettiar v. Chidambaram Chettiar, ILR 47 Mad 483 : (AIR 1924 Mad 494). The Full Bench decision of the Allahabad High Court holds that the provisions of Order 21, Rule 57 do not apply to attachments effected before judgment, for, the expression 'attachment in execution of a decree' has a definite and well settled connotation, 'execution of decrees' being a definite stage in the process of litigation under our Code of Civil Procedure, well marked off from proceedingy which terminate in the passing of the decree, the latter relating to determination of the rights of the parties, while the former is concened with the enforcement of those rights after they have been judicially determined and therefore if the legislature in enacting Order 21, Rule 57 used the expression 'in execution of decree', courts should not, in the absence of very strong reasons, extend the provisions of that rule to cover attachments effected before judgment, which are certainly not proceedings in execution of decree. The reasoning of the minority judgment in the Madras Full Bench case already referred to is indicated in the judgment of Schwabe, C. J. The learned Chief Justice makes a distinction between an attachment in execution and an attachment before judgment and the learned Judge's reasoning implies that by an attachment before judgment the plaintiff, in whose favour a decree happens to be passed thereafter, acquits certain rights over the attached properties and, the penal consequences contemplated by Order 21, Rule 57 which follow on the failure of the decree-holder to proceed expeditiously with the execution petition, cannot apply to a case of attachment before judgment, so as to deprive the plaintiff of those rights which he has acquired on his attachment before judgment.
7. This line of reasoning adopted by Schwabe,C. J., is effectively met by the reasoning in thesame judgment of Courts Trotter, J., which indicates the reasoning of the majority judgment inthe case. The learned Judge observes:
'It is well settled that attachment creates no title in the decree-holder or the prospective decree-holder as the case may be. It is merely a process whereby the Court puts its haad on the property attached and keeps it in custodia legis until something else happens.
I am unable to see that there is any difference in rerum natura, between an attachment before judgment and an attachment in execution of decree except that the one is prospective and, after the condition is fulfilled which brings it into active operation, namely, the obtaining of a decree, confers a priority in time. But an attachment before judgment is not a remedy of a kind higher than or different from, an attachment applied for and obtained for the first time in execution of a decree already passed.
The turnmg point comes in my opinion when the decree-holder by filing an execution petition has shown that he means to execute his decree; and I am myself unable to escape from what seems to me the logical conclusion that when hehas elected to proceed in execution, an attachment which he has obtained and on which he must necessarily base his petition and demand for sale, becomes automatically an attachment in execution.
The statute punishes lack of diligence on the part of the deeree-holder. I am unable to see any logical reason why lack of diligence should be punished only if he has attached the property after decree but excused if he attached it before decree''.
The learned Judge also construes the expression 'where any property has been attached in execution of decree' to mean 'where any property has been in a state of attachment in execution of a decree' and concludes :
'In my opinion, when a decree-holder having obtained his decree takes out an execution petition, he has. in effect, elected to take the benefit of Order 38, Rule 11, and asks the Court to treat his attachment henceforth as an attachment in execution of the decree which he is seeking to execute. When he has made that election it seems to me that his attachment thereupon becomes subject to those requirements of diligence laid down by Order 21, Rule 57. I cannot assent to the view that attachment before judgment and attachment in execution are two such wholly different things as to make any provision applicable in express terms to the one in no event applicable to the other; because in my view as soon as a decree-holder applies for execution on the strength of the attachment that he has obtained before judgment and which he seeks after judgment to use as validating the sale for which he is applying, he thereby by his own act asks the Court to treat his attachment as being an attachment in execution.'
This decision has been followed by a Full Bench of the Travancore-Cochin High Court in Muhammad Abdul Khadir v. Padmanatha Pillai 1952 Ker LT 264 : (AIR 1952 Trav-Co. 414) (FB). I would extract one passage from this judgment also because the second contention of the learned counsel of the appellnt has some bearing on this passage. The passage reads ;
'It is therefore held that an attachment before judgment shall cease to be operative when the execution application seeking to execute the decree pursuant to such attachment is dismissed for reasons stated in O. 21, R. 57 C. P. C,'
In a recent decision of the Andhra Pradesh High Court, namely Kangaypa Naidu v. Jayamangala, AIR 1960 Andh Pra 634 a Division Bench of the sad High Court has also followed the Madras Full Bench decision already referred to in ILR 47 Mad 483 : (AIR 1924 Mad 494) (FB), I respectfully agree with the reasoning of Coutts Trotter J., in the Madras case.
The second point urged is that in the present case the execution petition, which was dismissed for default on 15th Chingom, 1119, prayed only for personal execution against the judgment-debtor and therefore the dismissal of that application cannot ipso facto terminate the attachment before judgment. This is based on the passages already extracted by me from the Madras and Travancore-Cochin High Court judgments. The argument is that, since the decree-holder has not indicated his intention to bring the property attached before judgment to sale, or, to use the language of Coutts Trotter J., has not elected to take the benefit of Order 38, Rule 11, by making a prayer for sale of the property in his execution petition, the dismissal of such an execution petition for default cannot terminate the attachment before judgment. There is apparently some force in this contention, because the decisions already referred to related to cases of execution petitions for sale of the property already attached whereas in this case the execution petition that was dismissed for default had no prayer for sale in pursuance of the attachment already effected, the prayer being only for personal execution. But in principle I do not find any difference between the two.
Order 38, Rule 11 is in general terms to the effect that when an application for execution of a decree passed subsequent to an attachment before judgment is sought to be executed, it is not necessary for the decree-holder to re-attach the property. Order 21, Rule 57 if it applies to an attachment before judgment -- on which I have already held it does -- terminates the attachment even if the execution petition which is dismissed for default prays for only personal execution. There is no reason why the decree-holder should be allowed to keep the attachment before judgment subsisting, while he goes on seeking other remedies in execution against the judgment-debtor, instead of pursuing the execution proceedings against the property and getting it sold in continuance of the attachment already effected prior to the decree.
I venture to think that no distinction on principle should be made between an execution petition praying for personal execution and one for sale of the attached properties. After all, the rule which is only a rule of procedure is intended to make, the decree-holder prompt and diligent in tne execution proceeding and if he chooses not to be prompt and decides only to apply for personal execution and even that execution petition he does not diligently prosecute, there is no reason why the attachment should be allowed to subsist indefinitely. In this view I hold that the decision of the lower courts that the attachment before judgment is not subsisting is correct and therefore If dismiss the second appeal with costs.