Walter Salis Schwabe, K.C., C.J.
1. The respondent obtained an order for attachment before judgment of certain immoveable property of the judgment-debtor. The petitioner having obtained a decree ex parte against the same judgment-debtor, it was set aside on the latter's application on security being given to the petitioner, and as security, a charge was given over the property attached by the respondent. In due course the respondent obtained a decree as also did the petitioner, and there were other decrees against the same judgment-debtor by other persons. The respondent took out an execution petition in 1916, which came before the Court on several occasions, being adjourned from time to time for the respondent to file the necessary papers, which included an encumbrance certificate. These' papers not having been produced, the petition was on the 29th of August 1916 adjourned to the 19th September next for filing the papers, and on that date, the papers not having been filed, the petition was dismissed. Subsequently, the respondent attempted again to bring the property to sale, but this was objected to by the petitioner on the ground that the dismissal of the execution petition in September 1916 put an end to the attachment before judgment, and that therefore the petitioner's security over the property prevailed over the claim of the respondent and the other judgment-creditors, who would but for this security given to the petitioner be entitled to rateable distribution under the rules. The Subordinate Judge has decided against this view and has ordered rateable distribution. The petitioner has brought this Civil Revision Petition, which was ultimately referred to this Full Bench.
2. The question to be decided is whether the words ' property attached in execution .' in O. XXI, Rule 57, include ' property attached before judgment, ' when there has been a decree followed by an execution petition for the purpose of bringing the attached property to sale; for so, by the words of that Rule, upon the dismissal of the application for execution by reason of the decree-holder's default rendering the Court unable to proceed further with the application for execution, the attachment ceases. It was argued before us that there has been no default within the meaning of the Rule. But it would seem clear that the Court required papers to enable it to proceed further with the application for execution, and the hearing was adjourned to enable the respondent to file the necessary papers, and it was dismissed because he failed to do so, and I think that that amounts to a dismissal by reason of the decree-holder's default within the meaning of the rule.
3. But there remains the important question whether, when the attachment is an attachment before judgment, the effect of the dismissal is to put an end to that attachment. The penalty imposed by Rule 57 is very serious indeed, and, if it applies to an attachment before judgment, the effect of the dismissal of the application would be to give the petitioner, who took his security after the attachment, precedence over the respondent and all the other decree-holders who would otherwise be entitled to rateable distribution; and I cannot believe that so serious a penalty would have been imposed for what may have been the negligence of a vakil or delay caused by some difficulty in obtaining the necessary papers; and I have little doubt that the Court dismissing the petition had not the least idea that the effect of such a dismissal would be to impose such penalty. Indeed the law had by that time been declared in Venkatasubbiah v. Venkata Seshaiya (1918) ILR 42 M 1, to be that the dismissal of an application for execution for default had no effect upon attachments before judgment. Although the obvious injustice in this particular case of holding that the attachment before judgment ceases is not a proper matter for consideration, yet the serious injustice that may follow generally on deciding in one way, and the fact that third parties' interests may be affected without their having an opportunity to intervene, are legitimate considerations in arriving at the true interpretation of the rule, if the rule is open to alternative constructions. The rule is a penal one and the principle that is applicable is that the matter in question must be brought within the operation of the rule in express terms, or at least by necessary implication. Now, in terms, the rule applies to property attached in execution, and that expression does not include property attached before judgment. But it is argued that property which has been attached before judgment becomes property attached in execution, and ceases to be property attached before judgment, once proceedings are taken to bring that property to sale in execution. But I can find nothing in the Code to justify that view. It is true that, where property has been attached before judgment under O. XXXVIII, Rule 11, no fresh attachment is necessary after decree for the purpose of selling the property. But that, in my judgment, does no more than provide that in such a case there need be no attachment in execution, and that the Court having by reason of the attachment before judgment got control over the property can proceed with the sale. In other words, what the Code permits is that the attachment before judgment can be used, in order to enable the Court to hand over possession of the property to the purchaser at Court auction. Attachment before judgment and attachment in execution are essentially different.
4. There is nothing remarkable in their being a penalty imposed for failure to proceed expeditiously in the case of property attached since decree, without a similar penalty being imposed when the property is attached before Judgment, because the penalty would be much more serious in the latter case. It would involve the letting in of all alienations subsequent to the attachment to the exclusion of all other decree-holders, and there is nothing unusual in such alienation by way of security for some other claimant as in this case or otherwise, the alienee taking only the risk of the particular creditor who has attached before Judgment, subsequently obtaining a decree which is not otherwise satisfied whereas in the case of attachment after decree an alienation between the attachment and dismissal of the execution petition is most improbable, and at the worst such dismissal enables the judgment-debtor to alienate before the decree-holder can re-attach, and, although there have been cases where that has been attempted, such as Reddi Venkatasubbiah v. Tangator Subbiah (19I5) MWN 159 and Venkiteswarayyan v. Aswatha Narayanan : AIR1923Mad703 , it is not unaccompanied by risk as was demon-started in those two cases. It is clear from a comparison of Order 38 with Order 21 that the framers of the Code considered what provisions of Order 21 should be applied to attachment before Judgment, and I see no reason at all to suppose that it was intended to impose this penalty in cases of attachment before Judgment. If it had been intended, it could have been done quite simply by adding the words ' or attachment before Judgment ' in Order 21, Rule 57. Attachment before Judgment is one of the headings of Order 38, which contains a Code dealing with that form of attachment, which differs in many features from attachment in execution dealt with under Order 21. For instance, the provisions of Rules 7 and 9 of Order 38 have no application to attachments in execution; and Rule 12, dealing with agricultural produce, differs materially from Rule 74 of Order 21 dealing with the same subject; Rule 7 provides that the manner of attachment in the two cases shall be the same and Rule 8 applies the rules of Order 21 relating to the investigation of claims to cases of attachment before Judgment, and thereby clearly indicates that the Code looks upon the two attachments as being different things. Much reliance is placed by the petitioner on Rule 11; but, as I have pointed out, all that the rule says is that, where property has been attached before Judgment, and it is desired to execute the decree upon it, it will not be necessary to go through the formality of re-attaching the property, and it does not say that the original attachment before Judgment shall become or be deemed to be an attachment in execution, which words, in my judgment, would be necessary to make it an attachment in execution within the meaning of Order 21, Rule 57, or to make one form of attachment merge inextricably in the other. Further, it is worth noticing that the statutory forms in the Appendix for the two forms of attachment are quite different, for, by Form No. 7 of Appendix F, the order made for attachment before Judgment is addressed to the Bailiff and directs him to hold the property until the further order of the Court, while the form of the order for attachment in execution in Appendix E-24, is addressed to the party, and is in the nature of a prohibition to him from transferring or charging the property until further order of the Court.
5. 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.
6. Turning to the authorities, the point came directly for decision in Venkatasubbiah v. Venkata Seshaiya ILR(1918) M 1 and in Gones Chandra v. Banwari Lal (1912) 16 CLJ 86. Both in Calcutta and Madras it has been held under precisely similar circumstances' to those of this case that the attachment before Judgment is not affected by the dismissal of an application under Order 21, Rule 57. The Madras case purported to follow the Calcutta case and also two other decisions in Bavuddin Sahib v. Aruna-chala Mudali : (1914)26MLJ215 and Suraparaju v. Narasimham (1914) 1 LW 932. Neither of the two latter cases are authorities directly in point although they contain weighty dicta in favour of the view expressed in Venkatasubbiah v. Venkata Seshaiya ILR (19I8) M 1 being correct. The principle has now been accepted by all the text books and I think it correct to say that, since he passing of the Code of 1908, which for the first time introduced the provisions of Order 21, Rule 57, this has been the accepted view. I do not however think that the time has been long enough or the number of decisions sufficient--though probably the ruling has been followed in many unreported cases in the mufassal and here--to constitute a curses curiae, and so relieve us from having to decide the point, though the fact of its having been accepted as correct fortifies my conviction as to the true meaning of the rule. On the other hand there is a Full Bench decision in Arunachalam Chetty v. Periasami Servai 41 MLJ 256, which is relied upon by the petitioner, and is no doubt responsible for this attempt to upset the existing practice. That case requires careful examination. The question actually before the Court was as to which article of the Limitation Act applied to suits by a person against whom an order had been made on a claim preferred to property attached before Judgment--such claim being made after an order for sale made in execution. Article 11 of the Limitation Act imposes a limitation of one year from the date of the order for suits by a person against whom an order has been made on a claim preferred to property attached in execution. The Court held that that article applied to cases where the claim was preferred to property attached before Judgment if the claim was preferred after an order for sale in execution.
7. Wallis, C. J., with whom Oldfield, Kumaraswami Sastri and Ramesam, JJ., agreed, stated that the property attached before Judgment does not become property attached in execution upon the passing of a decree for the plaintiff either within the meaning of Article 11 or under Order 21, Rule 57, and that Order 38, Rule 11, merely enables the decree-holder to apply for execution without a fresh attachment. But he held that where an order for sale was obtained, that order proceeds on the footing that the property is to be considered as attached in execution by virtue of Order 38, Rule 11, and that a claim put in after the order may properly be regarded as a claim to property attached in execution of the decree and therefore within Article 11 of the Limitation Act. It is to be observed that this change which the Court held occurs in the nature of the attachment only comes into operation according to this judgment when an order for sale is obtained. It does not hold that this change occurs either on obtaining a decree or on making an attempt to obtain an order for sale by issuing an execution petition. The case is therefore not any authority in favour of the present contention, because in this case there has not been any order for sale. It may be if there had been such an order that the position would be different. This judgment points out the anomalous result that if a claim is made to property attached before judgment up to the order of sale, a suit by the party affected is barred in six years, whereas, if it is made after the order of sale, it is barred in one year, and suggests that the anomaly should be put right by legislation. Emphasis was placed in the judgment on the fact that, before the limitation provisions in such cases were removed from the Code of Civil Procedure and put into the Limitation Act in 1908, there was express provision that the limitation period of one year should apply both in the case of claims to property attached in execution and to property attached before judgment, and it was thought that the Legislature could not have intended in the process of removing a section from the Code of Civil Procedure to the Limitation Act to extend the limitation period. The Court, however, was driven to the conclusion that it had done so, but confined the extension within the narrowest possible limits. No such consideration applies to this case, as the penal provision of Order 21, Rule 57, in question was, when enacted, entirely new. It is not without interest that the Court treated the meaning of Order 21, Rule 57, as not germane to the matter then in issue and that I.L.R. 42 M. 1 and the cases there quoted were not even mentioned in argument. Spencer, J., delivered a separate judgment in which he says that, if a decree is passed and an attempt is made to execute it, what was an attachment before judgment becomes in effect an attachment in execution of a decree because Order 38, Rule 11, declares that no re-attachment is necessary and, later on, he says he finds no difficulty in classing a claim put in after the properties were brought to sale in execution proceedings under the heading of ' Claims preferred to property attached in execution of a decree,' and he declined to express an opinion on the hypothetical case of a claim put in to property attached before judgment before the decree and the commencement of the execution proceedings. I doubt if he meant by his judgment to go further than the rest of the Court, and to extend the principle enunciated by them to claims made where there was a decree but no execution proceedings, or to claims made after execution proceedings had been commenced. If he did so intend, his observations were obiter and I prefer the judgment of the rest of the Court, which in my judgment strained the language of the article in question in going even as far as it did. However this may be, 1 find nothing in that judgment when carefully examined which militates against the view expressed in I.L.R. 42 Mad 1, which I think was rightly decided. As there has been no order for sale in this case, and nothing but an abortive attempt to obtain, and for that purpose to make use of an existing attachment, it is not necessary here to decide what the position would be after an order for sale had been obtained. I can find nothing in the rule to make the failure to proceed expeditiously with the execution petition involve the loss of all rights acquired by the attachment before judgment. 1 would answer the question in the affirmative.
Coutts Trotter, J.
8. I regret that I am unable to agree. In matters of procedure it is obviously desirable that this Court, indeed, all the Courts of the country, should, as far as possible, speak with one voice. But in this matter we start with the situation that there are conflicting decisions of the various Courts of India and, as my Lord has said, it is not possible to contend that there is such a course of decisions either of this Court or of other Courts which would justify the attitude that, for the sake of uniformity, a result should be acquiesced in even although one thought it logically unjustifiable. I conceive that our business is to say, without reference to previous decisions, what we think to be the true interpretation of the provisions of the Code relating to the subject-matter of this reference.
9. The point for our decision is a very short one, namely, whether a party who has obtained an attachment before Judgment and has subsequently had his execution petition dismissed for want of due diligence in presenting the necessary papers to the Court loses the priority that he had enjoyed by reason of his attachment before Judgment. If he has lost it, he has lost it by reason of the provisions of Order 21, Rule 57, which runs as follows:
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 ' (among other powers) ' dismiss the application.
10. The Court in fact dismissed the application in this case. Then follow the words ' Upon the dismissal of such application the attachment shall cease. ' By Order 38, Rule 11, it is provided as follows:
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 a re-attachment of the property.
11. The whole point here is whether Order 21, Rule 57, operates on an attachment which had been obtained before Judgment or is to be confined to an attachment first sought and obtained after decree and in execution of that decree. 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 hand on the property attached and keeps it in custodia legis until something else happens. It appears to me that Order 38, Rule 11, provides that, when property has been attached before Judgment, it remains attached when in due course after Judgment the decree-holder applies for execution of his decree. It has resolved doubts alluded to in Ramakrishna Das Surrowji v. Surfunnissa Begum ILR (1880) C 129, as to whether after decree it might not be necessary for the attaching creditor to re-attach the property and it provides in terms that the property shall remain attached upon an application for execution of the decree. 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. Language is used in some of the cases which might suggest that the mere passing of a decree converts an attachment before Judgment into an attachment in execution. I do not adopt that view for the reasons pointed out by Wallis, C. J., in Arunachalam Chetti v. Periasami Servai 41 MLJ 256. The reasoning appears to be this--and I respectfully regard it as perfectly sound--that a decree-holder need not proceed in execution unless he chooses to do so, and it would therefore be absurd to say that an attachment is an attachment in execution when there is no execution. The turning 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 he has 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. That seems to me to underlie the reasoning of the Judges in the Full Bench case to which I have referred, particularly of Spencer, J., with whom I find myself in complete accord. I think it is also implied in the reasoning of the Judgment in Bavuddin Sahib v. Arunachala Mudali (1913) 26 MLJ 215. I confess I am not impressed by the argument that Order 21, Rule 57, is a penal enactment which takes away rights which would otherwise exist and must therefore be construed verbatim et liberalim. No common law rights are here involved. The whole position of the decree-holder and all his rights are alike the creatures of a bundle of statute-made provisions. The statute punishes lack of diligence on the part of the decree-holder. I am unable to see any logical reason why his lack of diligence should be punished only if he has attached the property after decree but excused if he attached it before decree. Nor do I think that the grammatical construction of Order 21, Rule 57, can really bear the construction sought to be put on it. The words are ' where any property has been attached in 'execution of a decree. ' That I construe as meaning ' where any property has been in a state of attachment in execution of a decree ' and not confined to cases where the first act of attachment was made subsequently to the decree. To put it in the technical language or grammar, I regard ' has been attached ' as a perfect and not an artist tense. 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. I would therefore answer the question propounded in the negative.
12. The facts of the case were stated by me in the order referring the case to a Bench of two Judges and need not be repeated.
13. The question referred to the Full Bench is ' whether the attachment before judgment in this case was subsisting after the dismissal of E. P. No. 183 of 1916 on the 19th September 1916.'
14. The decision turns upon (1) whether Order 21, Rule 57, ever applies to attachments before judgment and (2) if it does, under what conditions? The two questions are connected and will be discussed together.
15. They turn on the construction of the words ' attached in execution of a decree ' in Order 21, Rule 57. If an attachment be-lore judgment can ever become or be converted into an attachment in execution, the rule applies to an attachment before judgment after it is so converted into an attachment in execution. If such conversion is impossible, it does not.
16. In the Code of 1859 there was no provision Corresponding to Order 38, Rule 11, of the present Code. There was a conflict of opinion on the necessity of a re-attachment by a decree-holder who had obtained an attachment before judgment and who desired execution of his decree.
17. In Calcutta, it was held that attachment before judgment and attachment in execution were so entirely different in their nature that one cannot subserve the purposes of the other and it was necessary for such a decree-holder to re-attach the property for purposes of execution--Sreeram Manick v. Tincowree Roy (1870) 13 WR (FB) . The High Court of North West Provinces took a different view. Pearson and Turner. JJ., in Sarkies, Agent of the Official Assignee of the Insolvent Court of Calcutta v. Mussumat Bundho Raee (1869) 1 NWPHCR 81, said ' Futhermore, there is in our judgment no difference between the effect of attachment obtained before, and attachment obtained after decree. ft is true that in the former case the plaintiff can only obtain an order for the attachment of specified property, whereas in the latter the decree-holder may obtain a general order for the attachment of the property of the judgment-debtor, wherever it may be found; but the reason for this difference is to be found in the grounds on which the Court is authorized to grant attachment before judgment, that is to say, the probability of the disposal of the property, or its removal out of the jurisdiction of the Court. In both processes the orders directing attachment are to be carried out under the provisions of Section 233 and the following sections; in both the claims of the third parties are to be similarly investigated under Sections 246 and 247; and to both apply the prohibitions contained in Section 240, which prohibitions we hold to embrace all the consequences resulting from attachment, whether the order be made before or after judgment. When property has been attached by actual seizure or written order, any private alienation thereof, whether by sale, gift, or otherwise, is null and void.' The legislature differing from the Calcutta view, and adopting the Allahabad view, enacted a section in the Code of 1877 similar to Order 38, Rule 11, making a re-attachment unnecessary and the attachment before judgment available for purposes of execution. It is true that after the Code of 1877 was passed, the Privy Council held on the Code of 1859, that the attachment before judgment continues and cannot be regarded as abandoned by the then practice of re-attachment (Ramkrishna Das Surrowji v. Surfunnissa Be-gum (1880) ILR 6 C 129,133. (P.C.) but this is immaterial.
18. Now, Order 21, Rule 11, provides that one of the modes in which assistance of the Court in execution is required is ' by the attachment and sale, or by the sale without attachment, of any property.' Sale without attachment is permissible only in a decree for sale. Therefore, in a decree for money, there must be an attachment in execution preceding the sale. In a case where there has been an attachment before judgment and no re-attachment (pursuant to the provision of Order 38, Rule 11) where is the attachment in execution preceding the sale as required by Order 21, Rule 11? The answer is that the attachment before judgment is such attachment in execution, having passed into the latter. In my opinion, the effect of Order 38, Rule 11, is, though it does not say so in so many words, that the attachment before judgment becomes an attachment in execution when it is definitely sought to be made available for execution. This is the view taken in the Indian Courts and by the text-writers up to 1911. In Pallonji Shapurji Mistry v. Edward Vaughan Jordan ILR (1888) B 400, Scott, J., referring to Section 490 of the Code of 1882 (corresponding to Order 38, Rule 11) said (at page 405): 'The attachment before judgment enures and becomes an attachment in execution. That is the effect of the section.' This was followed in Sewdut Roy v. Sree Canto Maity ILR (1906) C 639 by Woodroffe, J., who said, ' on such application for execution, the attachment before judgment enures and becomes, upon and by virtue of the application, an attachment in execution.' In Bhugwan Chunder Kritiratna v. Chundra Mala Gupta ILR (1902) C 773 Ghose and Brett, JJ., held with reference to Section 285 of the old Code (corresponding to Section 63 of the present Code) which contains the words ' under attachment in execution of a decree.' that the section applies to attachments before judgments also. Messrs. Amir Ali and Woodroffe in their first edition of the Civil Procedure Code at page 1156 say: 'He must apply for execution just like any other creditor : (In the foot-note to this sentence, the decisions in I.L.R. 12 Bom 400, were cited without any disapproval. ) ' This is now made clear by the words ' upon an application for execution of such decree.' Where, however, an application for execution is made by the terms of this rule, no application for attachment is necessary, the attachment before Judgment enuring and becoming upon and by virtue of the application for execution, an attachment in execution. ' In the foot-note they refer to Bhugwan Chunder Kritiratna v. Chundra Mala Gupta (1902) I CLJ 97, and add, ' In this respect, the law is now settled, etc. ' In Durpati Bibi v. Ramrach Pal ILR (1909) A 527, Banerji and Tudball, JJ., say, ' so that, after the passing of the decree, the attachment already made was to be deemed to be an attachment in execution of the decree. ' In Ramasamy Udayar v. Chakrapani Chettiar (1907) 17 MLJ 488, there were two attachments before Judgment in two Courts and Section 285 was applied to them as in I.L.R. 29 Cal. 773. Subrahmanya Ayyar, J., said, ' the effect of Section 490, C. P. Code, is to put a person attaching before Judgment in the same position as if he had attached after decree, if a decree is passed in his favour. ' In Krishnaswamy Mudaliar v. Official Assignee of Madras (1903) ILR 26 M 673 (a decision of three Judges), the learned Judges, after stating that Section 490 of the C. P. Code provides that no re-attachment is necessary add: 'The case, therefore, stands upon the same footing as if the creditor had obtained his decree and had afterwards obtained an order of attachment. ' Thus, it is clear that the construction contended for by the petitioner has always been accepted up to 1911.
19. The first note of dissent from this view was struck in Gones Chandra v. Banwari Lal (1813) 16 CLJ 86. The learned Judges (one of whom was Sir Cecil Brett) dissent from I.L.R. 12 Bom. 400. The decision in I.L.R. 29 Cal. 773 (in which Brett, J., was one of the Judges) was not referred to nor is the closely connected question, the possibility of the conversion of an attachment before Judgment into one in execution, discussed. This decision was referred to in Bavuddin Sahib v. Arunachala Mudali (1913) 26 MLJ 215, where their Lordships say: 'The other contention of the appellant, namely, that....the present decree-holder converted the attachment before Judgment into an attachment in execution is not sustainable. Such conversion can take place only if the decree-holder applies for sale of all the properties in execution of his own decree. Whether such conversion will take place even in such a case may be questioned on the authority of Gones, Chandra v. Banwari Lal (1912) 16 CLJ 86, but it is unnecessary to decide that question for the purposes of this case. ' This decision far from being an authority in favour of the respondent is, as the expression of an opinion, against him. It is true the last sentence above quoted leaves the point before us open. But the immediately preceding sentence indicates the view that the attachment before Judgment will be converted into one in execution on the application of the decree-holder for sale. The next case supposed to be in favour of the respondent is Suraparaju v. Narasimham (1914) 1 LW 932. It does not appear from the facts that any application for execution was dismissed for default. There was no reference either in the argument or in the Judgment to Order 21, Rule 57, or to the cases above discussed. The next decision relied on by the respondent is Venkatasubbiah v. Venkata Seshaiya ILR (1918) 42 M 1 . It purports to be based on 16 Call. L. J. 86. The last two decisions are scarcely authorities for it. So that, we have, as against the decisions and opinions that prevailed from 1869 to 1911, two decisions in 1912 and 1918 in favour of the respondent. In this state of the authorities we got the decision in Arunachalam Chetti v. Periasami Servai 41 MLJ 256 (FB) ; here the question arose with reference to the words ' attached in execution of a decree' in Article 11 of the Limitation Act. A Full Bench of five Judges held that, after an order for sale was passed after the decree, an attachment before Judgment becomes an attachment in execution. Wallis, C. J., said referring to Order 38, Rule 11: 'This provision does not, in my opinion, enable us to say that property attached before Judgment becomes property attached in execution of a decree upon the mere passing of a decree for plaintiff either within the meaning of Article 11 of the Limitation Act or Order 21, Rule 57, already mentioned, as execution may never be applied for, but merely enables the decree-holder to apply for execution by sale of the attached property without a fresh attachment. Where, however, as in the present case, there is an order in execution for the sale of the attached property, that order appears to me to proceed upon the footing that the property is to be considered as attached in execution by virtue of Rule 11, etc. ' This was concurred by three other Judges (of whom I was one). Spencer, J., though he may be regarded as going further than the others, certainly agreed with them to the extent that, at least after the order for sale, the attachment before Judgment becomes one in execution. The Judgment is therefore an unanimous Judgment of five Judges laying down an attachment before Judgment may be converted into an attachment in execution of a decree and is binding on this Court; and when we remember that the Limitation Act and Civil Procedure Code are allied General Acts (first passed together in 1859, again in 1877 and again in 1908) and ought to be construed consistently [See Phoolbas Koonwar v. Lalla Jogeshar Sahoy (1875) ILR 1 C 226 at 242 (PC) and Arunachalam Chetty v. Periasami Servai ILR(1921) M 902 ], it is seen that it will be a great anomaly without any justification if the same expression is construed in one way in Section 63 of the Civil Procedure Code and Article 11 of the Limitation Act and in another way for Order 21, Rule 57, of the C. P. Code. If the character of an attachment before Judgment is such that its conversion into an attachment in execution is impossible, such impossibility exists equally for the purpose of Section 63, C. P. C, and Article 11 of the Limitation Act as for Order 21, Rule 57. Unless there is a clear indication to the contrary in one or more of these provisions, the possibility of such conversion equally applies to all and I see no reason to depart from ILR 44 Mad. 902, which definitely established the possibility of such conversion.
20. I do not feel it necessary to discuss the interpretation of Order 38, Rule 9. I agree with the decisions in Ram Chand v. Pitam Mal 8 AWN 195 and Abdul Rahman v. Amin Sharif ILR (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. While Order 38, Rule 9, provides for one mode of terminating an attachment before judgment, it is not the only mode and it does not stand in the way of construing Order 21, Rule 57, as providing another.
21. Nor do I think any assistance can be derived from the Form 7 in Appendix F of the Code. Appendix E, Form 24, which also seems to imply that a further order of the Court is necessary to put an end to the custody of the Court in an attachment after Judgment, may seem to be inconsistent with Order 21, Rule 57. I think the true view is that the Forms have nothing to do with the rights of parties but only deal with the relation of the Court to its subordinate officers who carry out its orders.
22. It is said that, if the petitioner's contention is correct, Order 38, Rule 8, would be unnecessary in the face of Order 21, Rule 58, but the same may be said of Order 38, Rule 11. It may be some of those rules are not absolutely necessary but have been enacted as a matter of abundant caution.
23. It may be that, of the various opinions in the decisions, cited by me above and with which I agree, some are obiter dicta while others are necessary for the decision. It may be that in some of them the exact period of time when the attachment before Judgment was converted into an attachment in execution had not to be and was not considered.
24. In the case before us, as soon as the application (E. P. No. 183 of 1916) mentioning an attachment before Judgment and praying for sale, was filed, the Court passed the following order on 6th May, 1916: 'Copy of attachment warrant and the order making the said attachment absolute to be produced.' These papers were produced on 11th July, 1916. The Court, being satisfied that there was such an attachment as to justify the prayer for sale (as required by Order 21, Rule 11), passed the next order on the application on 11th July, 1916. In this order, the Court, apparently acting under Order 21, Rule 22, directed notice to the defendant as the decree was more than one year old. This is a definite acceptance by the Court of the application as a proper application for sale and a statement of its willingness to pass further orders on it unless the defendant can show cause. The defendant was served on 29th July 1916. On the 8th August, the Court passed an order directing the sale-papers to be filed. By ' sale-papers ' were meant drafts of the proclamation, encumbrance certificate, etc., as required by Rule 148 of the Civil Rules of Practice. If the papers were filed, the sale would have been ordered; but, as they were not filed, the application was dismissed. In my opinion, after the Court was satisfied that there was such an attachment on the properties sought to be sold as to satisfy the requirements of Order 21, Rule 11, and when it passed the next order on the footing that there was an attachment which serves all the purposes of an attachment in. execution, i. e., on 11th July 1916, the attachment before judgment had become converted into one in execution.
25. I will now refer to certain general considerations apart from decisions, which are supposed to be against this view. First it is said that an attachment before judgment is, in its nature, so essentially different from an attachment in execution, that it can be never converted into the latter. This was the view taken in Sri Rammanik v. Tincowri Rai (1869) 9 B LR 63 (FB) but, in my opinion, the legislature abandoned it when the section in the Code of 1877 corresponding to Order 38, Rule 11, was enacted.
26. It is true that there are some differences between an order for attachment before judgment and an order for attachment in execution, namely,
(1) The former is made before judgment and the latter after judgment.
(2) An order for attachment before judgment is made only after giving the defendant to show cause why it should not be made. No such notice is given before an order of attachment after judgment. The reason for this difference is the absence of a decree in the former case.
As a corrollary following from this, if security is given by defendant the Court does not pass on order of attachment before judgment; an attachment already effected will be withdrawn. To the extent that these are considered as very important differences, I do not agree with Basiram Malo v. Kattyayani Debt ILR (1911) C 448which relies on the obsolete decision of 4. B.L.R. 63 (F. B.)
(3) Order 38, Rule 12, is another difference due to the anticipating nature of an attachment before judgment.
27. But do these differences make the attachment before judgment so entirely different in character, from one after judgment that one can never pass into the other? I am of opinion they do not. In my view, the attachment before judgment and after judgment are identical in their essential features. Each is effected by a prohibitory order. The purpose of both is the same. The consequences of both are the same. All alienations by the judgment-debtors are void against claims enforceable in pursuance of the attachment. Neither has got the character of a charge. It is thus seen that, so far as they vacate or affect rights, they are substantially identical in character (vide 1 N. W. P. H. C. R. 96 and 97 already quoted). Just as the effect of two attachments of the same property in execution of the same decree (the second one being effected in forgetfulness of the first) is merely that the property is under attachment, the first attachment merging in the second, similarly the effect of an attachment before judgment followed by a redundant re-attachment after judgment is merely that the property is under attachment. In such cases it is meaningless to say that the property is under two attachments. It is still more meaningless to say that one attachment is dropped but another subsists. All the earlier attachments, in all such cases, merge into the last. Where there are several attachments, it is not that every attachment has an individuality of its own but the property is under a state of attachment.
28. Secondly, it is said that other creditors who obtained no attachments of their own but who might share rateably in the amount that may be realized by the respondent, lose this chance if the respondent's attachment is held to have been extinguished under Order 21, Rule 57 and this is a great hardship. I do not see any hardship in this. Such creditors have no rights against the property--none, certainly that ought to prevail against the appellant and if they have a chance of sharing rateably with the respondent under Section 73, it seems to me to be a piece of good luck which they little deserve to have, dependent on the diligence with which the respondent pursued his attachment. They are no more unlucky when the attachment terminates under Order 21, Rule 57 than in the case when the decree-holder pays off the attaching creditor or gives some other property as security for the debt of the attaching creditor and the attachment is withdrawn under Order 38, Rule 9. The hardship is exactly the same as when we have, instead of the first attachment before judgment, an attachment after judgment. I do not think that instances of creditors sharing rateably in the fruits of the attachment before judgment are more numerous than in cases of attachment after judgment. Finally, I do not think such remote considerations of hardship on other creditors can have any place in the construction of Order 21, Rule 57, especially as I am not able to conceive of any argument based on hardship which does not equally apply to attachments after judgment. I am not able to see any reason why the legislature should create a smaller standard of diligence for judgment creditors who had obtained an attachment before judgment, than those who did not, in working out execution of the decree.
29. I would overrule Venkatasubbiah v. Venkata Sashaiya ILR (1918) M 1 I agree with Spencer, J., in the order of reference, and answer the question referred to us by saying that the attachment is not subsisting.
30. I agree with the decision of the learned Chief Justice and will, as there is a divergence of opinion in the Full Bench, give my own reasons.
31. The respondent in this case obtained an attachment before judgment in O.S. No. I53 of 1914 on the file of the Court of the Subordinate Judge, Ramnad, his attachment being obtained on 20th November 1914. He obtained a decree in the Temporary Subordinate Judge's Court, Ramnad, to which his suit had been transferred on 22nd February 1915, which decree was sent for execution to the Court of the Subordinate Judge of Ramnad. He filed an execution petition, 183 of 1916, which was dismissed on 19th September 1916 apparently because he had committed default in failing to file an encumbrance certificate within time. The petitioner before us had, in O.S. No. 108 of 1914, obtained an ex parte decree against the same judgment-debtor but that ex parte decree was set aside on the judgment-debtor giving security on 15th March 1915, the security being given on the same property which the respondent had attached before judgment. The question for decision is whether, on the dismissal of the respondent's execution petition 183 of 1916, the attachment before judgment ceased or whether that attachment enured and thus takes precedence of the security given on the same property in favour of the petitioner.
32. 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 necessary 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 rulings in Ram Chand v. Pitam Mal ILR (1888) A 506 and Abdul Rahman v. Amin Sharif ILR (1918) C 780 are contrary to this view, but, for reasons given, I must disagree with them. When the suit has not been dismissed, but decreed, it goes without saying (again taking O.38 as it stands) that the attachment continues, until it is withdrawn by the Court, so long as execution of the decree is not barred. Rule 11 makes that quite clear. See also Ganu Singh v. Jangi Lal ILR 26 C 631.
33. Respondent obtained a decree in his suit. Hence, so far as Order 38 goes, his attachment before judgment has not come to an end, since there is on record no formal order of withdrawal of the attachment by the Court. It can only have come to an end if there is some other provision of the Civil Procedure Code, which has caused it to cease. Petitioner's contention is that. Order 21, Rule 57, is such a provision; and that is really the only argument in his case. The whole point is: Does the phrase ' property...attached in execution ' in Order 21, Rule 57, include ' property attached before judgment, ' when that attachment is utilised, by force of Order 38, Rule 11 for an execution.
34. Petitioner's contention appears to me open to several objections. In the first place, an attachment before Judgment is not ejusdem generis with an ordinary attachment in execution. To effect the former, the Court must, besides issuing, as required by Order 38, Rule 7, the usual prohibitory order to the judgment-debtor and the public generally, under Form E-24 of the first schedule, also issue a special order in Form F-7 to its Bailiff to attach the property and keep it ' under safe and secure custody until the further order of the Court. ' This dearly implies that the order under Form F-7 remains in force until it is withdrawn by a further order. It seems to me very difficult to hold that that further order is lying perdu in Order 21, Rule 57, and must be deemed to have been passed, when the execution application is dismissed under that rule. It is true that form E-24 also uses the same phrase and implies a further order also. On this I can only say that it is inconsistent with Rule 57, the inconsistency probably being due to the omission to notice the full effect of Rule 57, when it was newly introduced into the Civil Procedure Code of 1908. I find it difficult to hold that in passing this new rule the legislature intended to abolish the 'further order of the Court' required by Form F-7, a form not coming under Order 21 at all, or to abrogate the clear provisions of Order 38, which had been in force substantially since 1859 at least. Rule 57 of Order 21 is of a penal nature and should therefore be construed strictly. One is not entitled to conclude that rights previously enjoyed by parties have been taken away by a new provision in a Code, unless that provision in clear terms or by necessary implication involves such a conclusion.
35. Secondly, Rule 57 appears as a rule in an Order devoted to execution of decrees and orders, and in my view it should therefore be confined to such attachments as are dealt with in the Order itself and not applied to attachments effected outside that Order . It has been argued that the phrase ' property attached in execution' should mean 'property in a state of attachment in the course of the execution of the decree. ' I think the more natural interpretation is simply that the phrase is to apply to such attachment in execution as is described earlier in the same Order--vide Order 21, Rule 11, etc. The following Rule 58 uses exactly the same phrase. Yet that rule does not apply automatically to property the attachment of which occurred before judgment. A special rule under Order 38, viz., Rule 8, was enacted to make it applicable. There is nothing in Rule 8 to indicate that it is confined to claims against an attachment before Judgment, only until the Judgment has ripened through a decree into an execution. The test for the application of Rule 8, as I read it, is not ' Has execution been taken out,' but ' at what stage of the case was the property attached. ' Order 38, Rule 8, incorporates, so to speak, Rule 58 of Order 21--vide Prasada Nayudu v. Virayya ILR 41 M 849. There is no corresponding rule in Order 38 incorporating Order 21, Rule 57, in it, and no rule from which one is entitled to infer that an attachment before Judgment becomes, when execution is taken out, on the strength of that, an attachment in execution.
36. No doubt there is one ruling which loosely uses the word ' becomes ' and to that case our attention was directed in arguments, viz., Sewdut Roy v. Sree Canto Matty ILR (1906) C 639. In Drupati Bibi v. Ramrach Pal ILR(1909) A 527, the language used is that an attachment before Judgment shall after a Judgment ' be deemed to be an attachment in execution of the decree. ' The fact that the attachment before Judgment is useful chiefly for the purpose of a subsequent sale in execution will not, to my mind, convert every attachment into an attachment in execution.
37. The petitioner relies strongly upon the ruling reported in Arunachalam Chetty v. Periasami Servai (1921) ILR 44 MLJ 256 (FB) , which laid down that Article 11 of the Indian Limitation Act, which deals with the question of the limitation period for an order on a claim petition preferred to ' property attached in execution of a decree, ' applies to an order on a claim petition preferred to property attached before Judgment after an order for sale in execution had been passed. Three points have to be noted with reference to this case; first, that it was a case of a claim made after decree, after an application for execution had been put in and after an order for sale in execution had been passed; secondly, that Section 246 of the old Civil Procedure Code of 1859, which the Judges held to be the fous et origo of Article 11 of the Indian Limitation Act, applied expressly in terms to an attachment before Judgment as well as to an attachment in execution; and thirdly, that they were oppressed by the facts that, despite the provisions of the old Code, the legislature had provided no special period of limitation at all for claims to property attached before Judgment, and that, unless 'the whole object of the summary claim procedure' was to be ' frustrated, ' a briefer period of limitation than that in Article 120 had to be found somewhere. The learned Chief Justice and the other learned Judges, who adopted his Judgment in that case, considered that they ' should not be justified in laying down generally that property attached before Judgment is attached in execution of a decree' and they distinctly held that Order 21, Rule 57, threw no light on the point that had been then argued before them. I do not think this ruling goes further than to say that a claim put in after there is an order in execution for sale following upon on attachment before Judgment ' may properly be regarded as a claim to property attached in execution of a decree within the meaning of Article 11 ' of the Limitation Act. It cannot, therefore, be construed to lay down that in all instances where the phrase ' property attached in execution ' occurs in any statute, it covers cases of property attached before judgment as soon as execution is taken out on the decree arising out of that judgment; it must, in my opinion in view of the compulsion, if it may be so called, exercised over their Lordships' minds, by the omissions of the Legislature, be strictly confined to what it lays down. I cannot, therefore, read into it a reversal of the decision in Venkatasubbiah v. Venkata Seshaiya ILR (1918) M 1. That is a direct authority in favour of the respondent in this case, to which one of the learned Judges in the I.L.R., 44 Madras case was a party, and other direct authorities quoted therein are Gones Chandra Adak v. Banwari Lal Roy (1912) 16 CLJ 86 and Bavuddin Sahib v. Arunachala Mudali, (1913) 26 MLJ 235 and another case, which indirectly is in favour of the respondent, Kosuri Suraparaju v. Mandapaka Narasimham, reported in 26 I. C, 81.
38. General considerations of equity, such as, for example third parties relying, for purposes of rateable distinction, on an attachment before judgment by some one else are entitled to be in any better position than third parties relying on some one else's attachment after judgment, or whether a party defaulting in the prosecution of his execution application ought to be in a better position because he has attached before judgment than if he had attached after judgment, do not, I feel, assist me much in the decision of this case. I think the decision must be based on an interpretation of the express provisions of the Code and on a consideration of the rights conferred by prior Civil Procedure Codes before Order 21, Rule 57, was passed at all. These last were perfectly clear and included the anomalies just mentioned, and the new Civil Procedure Code has left them as they were before.
39. I would, therefore, in answer to the reference, say that Order 21, Rule 57, does not apply to cases where the attachment is an attachment before judgment.
40. I think that the question referred to us should be answered in the negative. Order 38, Rule 11, provides that, where there has been an attachment before judgment, a decree-holder, in order to execute the decree, must make an application for execution, but need not re-attach. This is the only privilege he is given and I do not consider that it was intended to carry with it exemption from the penalty that awaits negligence on the part of attaching decree-holders in general. After he has made his application, he becomes subject to the provisions of Order 21. I agree that Order 38 contains the whole law in regard to attachment before judgment as such, but am not prepared to concede that attachment before judgment and attachment in execution are two entirely separate and distinct processes.
41. There is authority on both sides. In Venkatasubbiah v. Venkata Seshaiya ILR (1918) M 1 it was held that Order 21, Rule 57, had no application to attachments before judgment. The Judges followed one Calcutta and two Madras decisions on the point The Calcutta case [Gones Chandra Adak v. Banwari Lal Roy (1912) 16 CLJ 86 is certainly a direct authority in support of their view. One of the Madras cases (Bavuddin Sahib v. Aruna-chala Mudali (1913) 26 MLJ 215 is--if anything--an authority for the opposite view. What it actually decided was that an attachment before judgment did not cease to exist because an application for the arrest of the judgment-debtor had been dismissed for default. That is not in point here. Incidentally, however, the opinion was expressed that an attachment before judgment was converted into an attachment in execution where the decree-holder applied in execution for sale of the attached property. At the same time, a doubt was raised, with reference to the Calcutta decision, whether the opinion was correct, a doubt which the Judges expressly refrained from solving. The last case Kosuri Suraparaju v. Mandapaka Narasimham (1914) 1 LW 932 is not very clear. Apparently an execution application had been dismissed. If it was dismissed for default, the decision i: a direct authority in support of Venkatasubbiah v. Venkata ILR (1918) M 1. On the other side--apart from dicta in certain cases--there is Arunachalam Chetty v. Periasami Servai 41 MLJ 256 (FB). In that case property had been attached before judgment, a decree had been passed and an order for sale had been granted in execution. The question the Court had to decide was whether the words ' property attached in execution of a decree ' in Article 11 of the Limitation Act covered an attachment before judgment. The Full Bench decided that they did. The main judgment was delivered by Wallis, C. J., with whom all the other Judges concurred. Spencer, J., delivered a separate judgment which--as I understand it--went no further than that of the Chief Justice. It must be conceded that the particular instance with which the Court was concerned was one in which sale had actually been ordered; but I cannot agree that fact affects the principle of the decision. An order for sale pre-supposes and is based on an existing attachment. It does not itself create the attachment. If therefore an attachment before judgment becomes at any stage an attachment in execution, it must, in my view, be at the stage where an application to execute has been made and admitted under Order 21, Rule 17. And that I conceive to be the principle laid down by the Full Bench. I may add that, in the present case, sale papers had been called for which is usually done after attachment has been ordered. I am unable to see how a subsequent order for sale would have altered the position. Wallis, C. J. explicitly stated that he was considering both cases, that is, those ' in which the claim ... is put in after decree or even, as in the present instance, after sale had been ordered in execution.' Further on he observed: 'This provision (Order 38, Rule 11) does not, in my opinion, enable us to say that property attached before judgment becomes property attached in execution of a decree upon the mere passing of a decree either within the meaning of Article 11 of the Limitation Act or of Order 21, Rule 57, as execution may never be applied for.' This sentence seems to me to indicate (a) that he was considering the meaning of the phrase under discussion both in Article 11 of the Limitation Act and in Order 21, Rule 57 (b) that he was of opinion nothing more was necessary to convert an attachment before judgment into an attachment in execution than an application to execute. The order for sale he regarded as ' proceeding on the footing that the property had to be considered as having been attached in execution by virtue of Rule 11.' The reference to Rule 11 requires an application to execute (and such an application would, but for the proviso in the rule itself, be for attachment as well as sale) is to my mind conclusive proof that he considered that the attachment changed its character from the time of the application to execute. And that was the view taken by Spencer, J. Wallis, C. J., no doubt remarked that Order 21, Rule 57, threw no light on the question he was considering. Nor did it. He was considering the meaning of a certain expression in Art 11 of the Limitation Act which was practically identical in terms with a phrase in Order 21, R.57, but found that the context-in which the latter stood gave him no assistance in interpreting the former.
42. As I have already pointed out, the quotation above with its reference to' within the meaning of Order 21, Rule 57 ' shows that he was considering that rule as well as Article 11. I see no reason to doubt that he and the other Judges would have been prepared, had it been necessary, to answer the question referred to us in the negative. Indeed, I do not see how an answer can be avoided. When once it has been found that, for one purpose an application to execute converts an attachment before judgment into an attachment in execution, the conclusion is, to my mind, inevitable that the conversion operates for all purposes. Following what I believe to be the principle laid down by the Full Bench, I hold that, in this case, the property had been attached in execution within the meaning of Rule 57 and that the attachment ceased when the application for execution had been dismissed for default.
43. I may add that the same question has since been argued before me with reference to Section 9 of the Presidency Towns Insolvency Act. Under that section, an act of insolvency is committed where any part of a man's property has been attached in execution of a decree for over 21 days. It would, in my opinion, be anomalous to hold that an attachment before judgment takes a judgment-debtor out of the section, even though execution has been proceeding against his property for more than the prescribed period.
44. The Court--By a majority the question will be answered in the negative.