Packenham Walsh, J.
1. In this case the property of the judgment-debtor had been attached before judgment. After the attachment the suit was dismissed but no order was passed by the Court releasing the attachment. In appeal, the suit was decreed. The decree-holder sought to bring the property to sale on the strength of the attachment before judgment. The person who had purchased the property from the judgment-debtor after the attachment before judgment intervened with a claim. The learned District Munsif was of opinion that the attachment before judgment was not subsisting. The execution petition was accordingly dismissed. The decree-holder appealed to the Subordinate Judge who held that the attachment subsisted. Against this an appeal was filed which was allowed to be treated as a Civil Revision Petition. It came up before Jackson, J., who referred the question to a Full Bench whether, upon the dismissal of the suit, the attachment before judgment ' necessarily ceases under Order 38, Rule 9, Civil Procedure Code, or whether that rule merely permits an application to be followed by the order of the Court. He points out that it has been held in Seethai Ammal v. Narayana Aiyangar (1928) M.W.N. 710 Abdul Rahman v. Amin Sharif I.L.R.(1918) C. 780 Ram Chand v. Pitam Mal I.L.R.(1888) A. 506 and Manackjee v. R.M.N. Chettiar Firm I.L.R.(1926) Rule 492 that the attachment ceases but that the opposite, view that the Court's order is necessary is supported by Namagiri Animal v. Muthu Velappa Goundan (1928) 56 M.L.J. 70 Rasappa Pillai v. Doraiswami Reddiar : AIR1925Mad1041 and a remark obiter by Wallace, J., in Meyyappa Chettiar v. Chidambaram Chettiar I.L.R. (1923) M. 483 : 46 M.L.J. 415 (F.B.).
2. We may perhaps here notice the reasons given by the Subordinate Judge for his conclusion. The learned Subordinate Judge says that the view of the Madras High Court in Meyyappa Chettiar v. Chidambaram Chettiar I.L.R.(1923) M. 483 : 1923 46 M.L.J. 415 (F.B.) is in conflict with Abdul Rahman v. Amin Sharif (the reference to 48 Cal. 780 in his judgment appears to be a mistake) but he is incorrect in saying so. As will be pointed out below, the question in Meyyappa Chettiar v. Chidambaram Chettiar I.L.R. (1923) M. 483 : 46 M.L.J. 415 (F.B.) was different. Two of the Judges specifically mentioned the present question obiter, Ramesam and Wallace, JJ., taking different views. So also the learned Subordinate Judge is wrong in his inference from the statement of Phillips, J., at page 1043 of the All-India Reporter, Madras, 1925. 'I may also add that, in the opinion of the Judges forming the Full Bench in Meyyappa Chettiar v. Chidambaram Chettiar I.L.R.(1923) M. 483 : 46 M.L.J. 415 (F.B.) attachment before judgment continues in force, until it is put an end to by the Court,' This is the same Full Bench case, Meyyappa Chettiar v. Chidambaram Chettiar I.L.R.(1923) M. 483 : 46 M.L.J. 415 (F.B.) and the suit had not been dismissed but decreed. The majority of the Full Bench held that the attachment which therefore remained in force was the same attachment, under which the execution proceeding's were taken and therefore, on default of the decree-holder in execution proceedings, lapsed under Order 21, Rule 57. The argument which the Subordinate Judge deduces from Rule 14 was urged in Abdul Rahman v. Amin Sharif I.L.R. (1918) C. 780 and was' rejected. His final argument drawn from a claim petition has also been considered in Protap Chandra Gope v. Sarat Chandra Gangopadhyaya 25 C.W.N. 544 and distinguished. The learned Subordinate Judge says:
When a claim is allowed, an attachment in execution is withdrawn. What happens when a claimant fails in the regular suit? Is not the attachment revived?
3. In Protap Chandra Gope v. Sarat Chandra Gangopadhyaya 25 C.W.N. 544 in which it was held that such an attachment was revived, Mookerjee, J., has distinctly distinguished that case from one where the suit has been dismissed and where, therefore, the attachment should have been withdrawn by the Court under Order 38, Rule 9. Mookerji, J., says at page 547:
We are not unmindful that a different rule has been adopted with regard to attachments before judgment. There the view has prevailed that it is obligatory upon the Court to withdraw an attachment before judgment upon the dismissal of the suit, and the reversal of the judgment of dismissal on appeal does not operate to revive an attachment which has been cancelled. As explained in the case of Sasiroma v. Meherban (1911) Cri.L.J. 243 this result follows from the provisions of Order 38, Rule 9, which directs the withdrawal of attachment on dismissal of the suit and contains no provision which makes such withdrawal temporary and liable to be vacated on reversal of the decree of dismissal; in other words, Order 38, Rule 9 contains no provision corresponding to Order 21, Rule 63, which makes the order in the claim case and the release from attachment thereupon subject to the result of a regular suit. Consequently, in a case of attachment before judgment, the general rule applies that a revival of execution proceedings docs not operate as a revival of the attachment so as to prejudice the rights of strangers who have in the interval acquired a title to the property.
4. Order 38, Rule 9, reads thus:
Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment or when the suit is dismissed.
5. As regards authority on the point, until the remark which is obiter by Wallace, J., in Meyyappa Chettiar v. Chidambaram, Chettiar I.L.R.(1923) M. 483 : 46 M.L.J. 415 (F.B.) the matter had never come before this Court and the decision in Namagiri Animal v. Muthu Velappa Goundan (1928) 56 M.L.J. 70 is the first note of dissent in a decided case from a view which has been taken consistently by Calcutta beginning with Abdul Rahman v. Amin, Sharif I.L.R.(1918) C. 780 followed in Sailesh Chandra Datta v. Joy Chandra Roy : AIR1925Cal1147 and Jyotisk Chandra Sen v. Har Chandra Saha (1927) Cri.L.J. 282. The latter was even a stronger case for the suit had only abated. A decree had been passed in ignorance of the fact that one of the defendants died. It was set aside two years afterwards but it was held that the attachment obtained before judgment ceased with the abatement of the suit. In Ram Chand v. Pitam Mal I.L.R.(1888) A. 506 it was held that an attachment obtained before judgment ceased with the dismissal of the suit even though the Court failed to pass an order- In Chindha v. Chhaganlal : AIR1928Bom545 it was held that an attachment obtained before judgment must be considered to have been withdrawn when the suits were dismissed. On similar lines is the decision in Manackjee v. R.M.N. Chettiar Firm I.L.R.(1926) Rule 492 which held that when security is given to obtain removal of attachment before judgment under Order 38 of the Civil Procedure Code, the liability of the surety ceases as soon as the suit is dismissed in the first Court. There is, therefore, a consensus of opinion in Calcutta, Allahabad and Bombay that an attachment before judgment ceases when the suit is dismissed, even though no formal order be passed, and that a decree being obtained in appeal does not ipso facto revive it. Against this, there is only the decision in Namagiri Animal v. Muthu Velappa Goumdan (1928) 56 M.L.J. 70 by a Bench of two judges, Devadoss and Phillips, JJ., which has not been followed in the later case in Seethai Animal v. Namyana Aiyangar (1928) M.W.N. 710. The consensus of authority therefore is very much in favour of the view that an attachment before judgment ceases automatically when the suit is dismissed, and where the matter is one of procedure and uniformity is desirable, it would require strong reasons to hold that this consensus of authority is wrong.
6. Turning to the Madras cases in question, Meyyappa Chettiar v. Chidambaram Chettiar I.L.R.(1923) M. 483 : 46 M.L.J. 415 (F.B.) decided a different point, namely, that, where property had been attached before judgment and a decree given and in subsequent execution proceedings, owing to the decree-holder's default the execution petition is dismissed, the attachment also ceases under Order 21, Rule 57, that is to say, that when the attachment automatically ceases under Order 21, Rule 57, the decree-holder cannot, fall back on the attachment made before judgment and claim that it still exists. There was nothing in that decision affecting the present question. But some of the learned Judges made remarks obiter on the point. Schwabe, C.J., remarks at page 494:
If the matter were res Integra, I should without hesitation be prepared to hold that the attachment before judgment lasts until the Court puts an end to it by an order to that effect, or until it is otherwise brought to an end by reason of any of the provisions of Order 38, but that it cannot, by implication, be brought to an end by an order under Order 21, Rule 57.
7. In so far as there is anything in this remark that bears on the present question, it would rather support the view that the attachment before judgment comes to an end automatically with the dismissal of the suit even though the Court passes no order,' for the words 'until the Court puts an end to it by an order to that effect, or until it is otherwise brought to an end by reason of any of the provisions of Order 38' might be held to contemplate that the attachment can come to an end under some provision of Order 38 without an order of Court. However, the remark was probably made without any reference to this matter but merely in connection with the question then referred to the Bench to which the remark is equally apposite. Ramesam, J., at page 509, states: '
I do not feel it necessary to discuss the interpretation of Order 38, Rule 9. I agree with the decisions in Rani Chand v. Pitam Mal I.L.R.(1888) A. 506 and Abdul Rahman v. Amin Sharif I.L.R.(1918) C. 780 that when a suit is dismissed, the attachment before judgment terminates without an order of the Court. But even if the opposite view is the correct view, I do not think this has any bearing on the construction of Order 21, Rule 57.
8. Wallace, J., at page 515, says:
Taking Order 38, Civil Procedure Code, as it stands, it seems to me clear from the wording of Rule 9 that an attachment before judgment Only comes to an end by a formal order of the Court withdrawing it. This is, in my opinion, the correct way of interpreting Rule 9, which applies to cases where the security demanded has been furnished, or where the suit has been dismissed. Rule 6 (2) clinches this interpretation. It requires that even in the case of a conditional attachment before judgment, a formal order of withdrawal is necessity to raise the attachment. Much more must it be necessary for raising a final attachment, into which the conditional attachment has been converted. No doubt the railings in Ram Chand v. Pitam Mal I.L.R.(1888) A. 506 and Abdul Rahman v. Amin Sharif I.L.R.(1918) C. 780 are contrary to this view, but for reasons given, I must disagree with them.
9. The other two Judges express no opinion on the point. As regards the argument of Wallace, J., drawn from Rule 6 (2), that rule runs as follows:
Where the 'defendant shows such cause or furnishes the required security and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit.
10. The question whether, if the Court, while accepting such cause shown by the defendant or accepting the required security, does not make an order withdrawing the attachment, the attachment automatically ceases, is precisely the same question which arises on failure to make such an order under Rule 9 and therefore it is difficult to see how Rule 6 can help in interpreting the meaning of Rule 9. Two facts, however, may be noted which might distinguish it but in a direction opposed to the argument of Wallace, J. The initiation of proceedings to get the attachment set aside under Rule 6 (2) rests with the defendant and it might perhaps be argued that he is, therefore, bound to see that the Court passes the proper order withdrawing the attachment. It may further be noticed that the Court has an alternative--'or make such other order as it thinks fit.' We have not to decide in the present reference what the effect of the failure of the Court to withdraw an attachment order under Rule 6 (2) is. The authority of Manackjee v. R.M.N. Chettiar Firm I.L.R.(1926) Rule 492 quoted above is against the view that a mere failure to pass such an order will continue the attachment, but Rule 9 lays an obligation on the Court independently of any action by the party and allows the Court no alternative, which distinguishes it from Rule 6 (2).
11. Coming now to Namagiri Animal v. Muthu Velappa Goundan (1928) 56 M.L.J. 70 which is the only case in this or any other Court to which we have been referred, which holds that the attachment is not withdrawn unless there is a specific order, we find that that was a case where the suit had been dismissed for default and restored to file. While we doubt whether that could make any difference in the principle, and this seems to be the view of Phillips, J., in that case, the other learned Judge, Devadoss, J., appears in his judgment to lay some importance on it. He says:
In my view the dismissal of a suit does not amount to the withdrawal of the attachment before judgment and, if the order of dismissal is set aside on appeal and a decree is passed in favour of the plaintiff, the attachment before judgment would enure for his benefit. Here in this case the suit was dismissed for default of plaintiff's appearance and was restored by the Court. The restoration of a suit under Order 9, Rule 9, Civil Procedure Code, stands on a slightly different footing from the order of the Appellate Court reversing the dismissal of the suit. A Court may dismiss a suit for default and may restore it to file on proper cause being shown in the course of the same day. It would work great hardship if it be held that in such a case the attachment before judgment ceased to have force because the suit was off the file for a few hours.
12. In giving the reasons for his decision, the learned Judge says:
As soon as a suit is dismissed the person against whom an order for attachment was made has simply to apply to the Court for withdrawing the order. The application may be oral or in writing and the Court, when such an application is made, is bound to grant it unless there are circumstances which would justify postponing the granting of the prayer or refusing it. When a party does not choose to avail himself of a remedy which the law gives him, Courts are not justified in giving' him the remedy which, owing to his carelessness or negligence, he does not choose to ask. If a. garnishee pays the amount due from him into Court, can he withdraw the amount without an order of Court by reason of the dismissal of the suit If movable properties or negotiable instruments attached are in the custody of the Court, the dismissal of the suit in which the attachment was made would .not place the person from whom the moveables or negotiable instruments were taken in possession of them. Such a person will have to apply to the Court for getting them back. I do not see why a different rule should be held to apply when property attached, whether movable or immovable, is not in the actual custody of the Court.
13. We are unable to agree with the learned Judge that Order 38, Rule 9 throws any burden upon the defendant whose property is attached to apply to the Court to withdraw the attachment order. The duty is one thrown directly on the Court and ' no application from a party is necessary. As regards the second argument, it may be noticed that Devadoss, J., draws a distinction between attached property which is in the actual custody of the Court and attached property which is not. Before us it has been argued that all property attached, whether movable or immovable, is in the custody of the Court and that, therefore, it cannot be released from attachment without an order of Court. No doubt in a general sense all property attached is in custodia legis, but the nature of the custody may be very different. It is argued for respondents that Form No. 7, Appendix F--Attachment before judgment on proof of failure to furnish security (Order 38, Rule 6)--runs:
These are to command you to attach ... the property of the said ... and keep the same under safe and secure custody until the further order of the Court.
14. This form, however, seems clearly to refer to attachment of movable property for Order 38, Rule 7, says distinctly: 'Save as otherwise expressly provided, the attachment shall be made in the manner provided for the - attachment of property in execution of a decree.' Now, if we turn to the form of attachment of immoveable property in execution of a decree, we find Form No. 24, Appendix E, which says--
. . . . you are hereby prohibited and restrained, until the further order of this Court, from transferring or charging the property specified in the schedule hereunto annexed, by sale, gift or otherwise, and that all persons be, and that they are hereby, prohibited from receiving the same by purchase, gift or otherwise.
15. In certain respects it is clear that the custody of moveable property brought to Court and of immovable property attached under Form No. 24 of Appendix E is dissimilar. The Court is under no obligation to protect, nor is it responsible for, immovable property attached under Form No. 24, whereas if the property is brought to the Court, it would certainly be responsible for the loss, theft or damage of such property; and whether or not a suit could be brought against Government for such loss, it is certain that the Court officials would be held departmentally responsible. Whether a purely departmental order to hand over movable property the custody of which has been taken by the Court would be necessary under Order 38, Rule 9, before the defendant could remove the property is a question which does not arise in the present case and which we do not feel bound to discuss. Such an order might be necessary to protect the Court officers in charge of the property. The attachment would nevertheless, we think, automatically be withdrawn by the dismissal of the suit. In the case of immovable property attached, even this difficulty does not arise. As regards the argument that in the case of a suit dismissed for default and' restored in the course of the same day, it would work hardship to hold that the attachment before judgment ceased to have force, it is difficult to see how that can be a hardship which the law commands. There is much that might be said on the other side as to the consequences of holding that an attachment continues in force after a suit is dismissed. As was pointed out by Mahmood, J., in Ram Chand v. Pitam Mal I.L.R.(1888) A. 506 such an attachment will subsist for ever whether there is or not an appeal until it is expressly withdrawn. As stated above, the reference before us does not deal with a suit dismissed for default and restored to file but with one where the decree dismissing the suit is reversed on appeal. To say that on a suit being decreed in appeal all the interlocutory orders (passed in the course of the suit are at once revived appears to be going too far and might lead to serious difficulties. For instance, a temporary injunction might be granted against the defendant, say, prohibiting the manufacture and sale of certain' goods pending the disposal of the suit. If the suit were to be dismissed and on appeal it were decreed, would the defendant be liable to be proceeded against if he had continued to manufacture the articles after the suit had been dismissed in the first Court?
16. Turning to the judgment of Phillips, J., he has summarised all the arguments that can be used for the -contention that an attachment does not cease on the dismissal of the suit unless a specific order is passed by the Court. The first is that the words of the section contemplate an order being passed and it has been argued before us that there is some distinction in this matter drawn between Sections 485 and 488 of the old Code, which correspond respectively to Order 38, Rule 6, and Order 38, Rule 9. Section 488 of the old Code says, 'the Court shall remove the attachment'. This is now changed into 'the Court shall order the attachment to be withdrawn'. We doubt whether there is anything in this distinction. Even when the Court removes an attachment under the old Code, it was bound to pass some order in the matter. Then the next argument noticed by Phillips, J.--and it is perhaps the most serious one advanced before us--is the difference in the language of Order 21, Rule 57, and Order 28, Rule 9. Order 21, Rule 57, says: 'Upon the dismissal of such application the attachment shall cease.' Phillips, J., says: ,
The language in this section is very different from that in Order 38, Rule 9, but if the Allahabad and Calcutta decisions are correct the effect of the two sections is exactly the same although the language is so very different.
17. This is no doubt an argument that deserves very serious consideration, but we do not think that it is sufficiently strong to induce us to depart from the consensus of opinion of all the Courts which have taken the fatter view. Then the learned Judge says:
Under Order 9, Rule 9, when an application is made to set aside the dismissal of a suit for non-appearance of the plaintiff the Court shall make an order setting aside the dismissal. That order of dismissal having been set aside, the suit remains as it was on the day that it was dismissed and all proceedings taken up to that date must be deemed to be in force, when the dismissal is set aside, and in my opinion all interlocutory orders would be revived on the setting aside of the dismissal. Similarly, an order for attachment of property would also be revived.
18. As pointed out above, it is too wide a proposition to say that an appellate decree per se restores all the interlocutory orders passed in the original suit and there is ample authority for holding that if the Court does pass as the law directs, that is, an order under Order 38, Rule 9, withdrawing the attachment when it dismisses the suit, such an attachment is not revived by a decree passed in plaintiff's favour in appeal (vide Sasirama Kumari v. Mcherban Khan (1911) Cri.L.J. 243 which has been followed in Calcutta and other Courts). Finally Phillips, J., observes:
The question of whether when a suit is dismissed in the Lower Court and the dismissal is set aside in appeal the attachment must be deemed to have continued throughout is an aspect of the question which need not be decided now, but prima facie the result of the failure of the Court to pass an order withdrawing the attachment would appear to be that the attachment continues in force.
19. As noted above, the decision of the learned Judges in this case has not been followed in Seethai Ammal v. Narayana Aiyangar (1928) M.W.N. 710. It has been argued for the respondents that though the Court may be bound by law to do an act, the party can take advantage of the breach of this obligation if the Court does not do it. Grace v. Clinch (1843) L.R. 4 Q.B. 606 is quoted in support of this view. That was a case where an application for a Grand Jury was verbally granted by the Judge, but he did not sign the order until afterwards. It was held that as he should have signed the order at once and as he had not in fact done so, it could not be taken that the order had been passed. That case is, however, clearly distinguishable on the ground that the Judge was not bound to comply with the request to certify that the case was one which was proper to be tried by special jury. As he had a discretion in the matter to grant or refuse the request, it did not follow that the request had been granted if the order had not been signed in time. It was clearly on the party moving the Judge in such a matter to see that he obtained a proper order. Another case quoted for the respondents, Raj Raghubar Singh v. Jai Indra Bahadur Singh (1919) L.R. 46 IndAp 228 : I.L.R. A. 158 : 1919 38 M.L.J. 302 (P.C.) is really not relevant.. It was sought to be argued as an authority that where security is furnished, it enured even after the suit is dismissed. The decision which is one of the Privy Council does not support this view. Of course the terms of the security bond must determine the legal result following from the bond. In that case the decree-holder furnished security for any order that might be passed by the Judicial Commissioner of Oudh. A decision was given by the Subordinate judge in favour of the plaintiff- The decision of the Subordinate judge in favour of the plain-tiff was confirmed by the judicial Commissioner. An appeal being filed to His Majesty in Council, it was referred back to the Court of the Judicial Commissioner to ascertain, if there was any dispute, how much of the property formed part of the taluqa, and how much was the private estate of the deceased which would pass to his widow. On this remand, the Judicial Commissioner decided that all the villages claimed by the widow, except thirty-one, belonged to the taluqa and that the suit of the widow must be dismissed except as to these thirty-one. The question that arose was whether the security enured until the final order of the Commissioner or ceased on his first decree. Their Lordships held that it enured until his final order. They say:
By this instrument the obligors make themselves liable to the amount of one lakh as security for any order that might be passed by the Court of the Judicial Commissioner, not the first order but any order; and the ultimate orders of the Judicial Commissioner were that of the 4th March, 1907, decreeing that the claim of the widow be dismissed as to all but a few villages, and that of the 20th of November, 1916, by which, inter alia, the assessment of the Subordinate Judge finding that the mesne profits amounted to more than three lakhs of rupees was affirmed.
20. This case, therefore, is no authority for the proposition that security enures even after the suit is dismissed.
21. On the general principle that the law presumes that to have been done which it orders to be done, it appears reasonable to hold that, when the Court is enjoined on dismissal of a suit to pass an order withdrawing the attachment but fails to do so, that attachment shall be held to have been withdrawn. If the Court had any option in the matter, it would be different. Rule 5, clause 3, says:
The Court may also in the order (that is the order for security) direct the conditional attachment of the whole or any portion of the property so specified.
and Rule 6(1) provides:
Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached.
22. The object, therefore, of the attachment is to satisfy any decree which may be passed in the suit; and if this is read with Order 9, it seems clear that so far as this attachment is concerned, the decree passed in the suit is the decree passed by the Trial Court and not the appellate decree. If it were the decree which might be passed in appeal, there would be no reason why the attachment should be withdrawn merely because the suit is dismissed by the Trial Court and still less would there be any reason for making it compulsory for the Court to withdraw such an attachment. Evidently, therefore, the attachment is for a purpose which depends on the decree of the Trial Court. If the Court decrees the suit, the attachment will of course continue, but if the Court dismisses the suit, the fact that it is enjoined to withdraw the attachment shows that the attachment is not made as security for the decree which may be passed in appeal, but for the decree which may be passed by the Trial Court. We see no reason to depart from the consensus of opinion of all the other Courts which have dealt with this question, especially as it is a matter of procedure. Of the two cases in this Court which have resulted in conflicting decisions, the later is in favour of the view held by the other Courts.
23. We would, therefore, answer the question as follows:
Upon the dismissal of a suit, the attachment before judgment necessarily ceases under Order 38, Rule 9, even though the Court did not pass an order withdrawing it.
Kumaraswami Sastri, J.
24. I agree.
25. I agree.