1. The respondent obtained a simple money decree. In execution against the property which we are here concerned, the property was attached, but the petition was subsequently dismissed for default on the ground that the sale papers and the encumbrance certificate had not been filed. Eventually, however, on 28th January 1943, the decision of the executing Court was reversed with the result that the execution proceeded. In the meanwhile, however, on 10th May 1941, the appellant purchased the property that had been attached for Rs. 4500. Two questions arise in this appeal: (1) whether, upon the allowing of the appeal, the consequential order raising the attachment was automatically set aside; and (2) whether, even if it did so, it would affect the transaction that had been entered into at a time when in fact no attachment was subsisting. Both these points were decided against the appellant by the learned Judge (Panchapakesa Aiyar J.) in second appeal; but as he has granted a certificate, these two questions have been reagitated in this Letters Patent appeal.
2. Our attention has not been drawn to any decisions directly on the point here raised; but arguments have proceeded on the analogy of attachments raised in proceedings under Order 21, Rule 63 and Order 38, Rule 9, Civil P. C. It is conceded that in the former class of cases, the decreeing of a claim suit would have the effect of automatically restoring the original attachment and would render void any alienations made in the interim; but that class of cases is sought to be distinguished on the ground that the question as to the propriety of the attachment is directly in question in a claim application, as well as in a claim suit, and that the claim suit being in the nature of an appeal from the claim order it would restore the original attachment if decreed.
3. There is a considerable body of decisions to the effect that in cases of attachment before judgment, where the suit is dismissed and the attachment raised because of the mandatory provisions of Order 38, Rule 9, Civil P. C., the attachment is not automatically reimposed if, on appeal, the suit is decreed, the reason being, according to one of the decisions referred to, that the attachment is for the purpose of protecting the interests of the plaintiff during the pendency of the suit and not during the pendency of any proceeding that may arise out of the suit. In most of the cases cited by the learned advocate for the appellant, the difference in the wording of Order 21, Rule 63 and Order 38, Rule 9, Civil P.C., is stressed, and it is pointed out that whereas under Order 21, Rule 63, the order in the claim petition is specifically made subject to the result of the suit, there is nothing in the wording of Order 38, Rule 9, which suggests that the attachment would be automatically re-imposed in the event of the plaintiff's success in appeal. One would have thought that this question would not have depended on the wording of Order 38, Rule 9, alone but rather on broader principles as to the effect of appellate orders.
4. The decisions to the effect that a reversing appellate order would not have the effect of automatically re-imposing an attachment are mostly decisions of the Calcutta High Court, based ultimately on Sasirama Kumari v. Meherban Khan, 9 I. C. 918 : 13 C. L. J. 243, where one finds that the learned Judges came to the conclusion they did not upon an analysis of Indian and English cases, but on American decisions. The decision in Pindi v. U Thaw Ma, A. I. R. 1931 Rang. 281: 9 Rang. 472 follows the Calcutta decisions, the learned Chief Justice there having been a party to one of the Calcutta decisions. It is however unnecessary to say anything more with regard to these decision; because a Full Bench of this Court in Balaraju Chettiar v. Masilamani Pillai, 53 Mad. 334: A. I. R. 1930 Mad. 514 has come to a similar conclusion. Pakenham Walsh J. in his judgment, with which the other learned Judges concurred, came to the conclusion he did primarily because of the weight of decisions to that effect, with which he felt that this High Court should not disagree unless there were weighty reasons for doing so. The learned Judge stated :
'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.'
The learned Judge at p. 348 stated :
'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. . . .'
The learned Judge does not however say what classes of interlocutory applications may be restored and what classes may not be restored, except that he gives an instance of a case in which it would work inequity if the interlocutory application is restored.
5. Balaraju v. Masilamani Pillai, 53 Mad. 334 : A. I. R. 1930 Mad. 514, has been relied on by the learned advocate for the appellant, not so much because of the matter that fell for decision in that case, as for the criticism of the learned Judge of the remarks of Phillips and Devadas JJ., in Namagiri Ammal v. Muthuvelappa Goundan, (1928) 56 M.L.J. 70 : A.I.R. 1928 Mad. 940. Phillips J., in that case stated :
'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.'
The value of Balaraju Chettiar v. Masilamani Pillai, 53 Mad. 334 : A. I. R. 1930 Mad. 514, is however considerably weakened by the decision of another Full Bench of this Court in Veerasami v. Ramanna, 58 Mad. 721 : A. I. R. 1935 Mad. 365 , in which many of the remarks of Pakenham Walsh J., were considered to be obiter. Beasley C. J. stated :
'It must be observed, however, that, in that case, the Full Bench dealt only with the case where the suit had been dismissed and on appeal was decreed and did not deal with a case like the present one, where, after dismissal for default, the suit wag restored to the file and eventually decreed in the trial Court, and any observations of the Full Bench upon the latter point are merely obiter, and in fact the Full Bench did not express a decided opinion upon this point, although it is contended that certain observations of Pakenham Walsh J., appear to express a view contrary to the contention of the decree-holder here and in the Court below.'
The learned Judge then went on to consider the remarks of the Phillips and Devadass JJ., and clearly held a more favourable view of these remarks than Pakenham Walsh J., did in Balaraju Chettiar v. Masilamani Pillai, 53 Mad. 334 : A.I.R. 1930 Mad. 514. Then the learned Chief Justice went on to consider a decision of Ramesam J., in Saranatha Iyengar v. Muthiah Moopanar, (1934) 65 M. L. J. 844 : (A.I.R. 1934 Mad. 49, in which that learned Judge held that in the case of a suit dismissed for default and soon afterwards restored to file, in the absence of anything expressly appearingagainst the view that interlocutory applications were restored, the suit and all incidental matters were restored to file. This view was approved of by the Full Bench, The learned Chief Justice said :
'I entirely agree with our learned brother's (Ramesam J.'s) view upon this question. It does not seem to me reasonable that the plaintiff in a suit who has got an attachment before judgment should have again, after the restoration of the suit after its dismissal for default, to apply to the Court for a fresh attachment and that he having done so, the defendant should have to apply to raise the attachment by producing a surety or sureties. The common sense view of the matter is that all ancillary orders should be restored on the restoration of the suit without any farther orders.'
He then referred to a direct authority on that point i. e., Jia Bai v. Joharmull : AIR1932Cal858 , and approved of it.
6. In the case we are here considering, the attachment of the property was not an ancillary or interlocutory order, but part of the process of execution. If, in the case of a dismissal for default, even ancillary and interlocutory orders have to be restored if the dismissal for default is set aside on appeal, then a fortiori in a case such as we are here considering, the order attaching the property would have to be restored. When as order for dismissal for default is set aside, the effect of the appellate order which declares the order of the trial Court to be wrong is to restore the original application; and the trial Court would have to proceed with it from the stage at which it had interrupted it by dismissing it for default. If, therefore, in the present case the original order is set aside, the execution proceedings would have to be continued from the stage at which they were when the petition was dismissed for default. At that stage the property had already been attached.
7. The learned advocate for the appellant relies for both points on Patringa Koer v. Madhabanand Ram, 12 I. C. 65 : 14 C. L. J. 476, where the learned Judges came to the conclusion that there would be a revival of the attachment automatically, as far as the decree-holder and judgment-debtor were concerned ; but that allowing the appeal would not have the effect of reviving the attachment as against a third party, from which they seem to imply that the appellate order did not cover the period between the two orders. With due respect, we are unable to understand how the attachment can be revived against the judgment-debtor only. If there is an attachment, then it must apply to everybody, for the very purpose of an attachment order is to prevent alienations by the judgment-debtors in favourof any person, whether he has knowledge of the attachment or not.
8. An authority for the view that an order of the High Court restoring attachment would relate bask to the date when the attachment was first made and would render invalid any alienation in the interim period is Gopal Prasad v. Kasinath, : AIR1920All356 , which followed Muhammad Warris v. Pitambur Sen, 21 W. E. 435; Bonomali Rai v. Prosunno Narain, 23 ALL. 829 ; Ramchandra Marwari v. Mudeshwar Singh, 33 Cal. 1158 : 10 C. W. N. 978 and Ali Ahmed Khan v. Bansidhar, 6 A. L. J. 434: 31 ALL. 367 In Najmunnessa Bibi v. Noohiruddin Sardar : AIR1924Cal744 , Rankin J., after considering the relevant provisions of the Code and the authorities bearing on the subject, stated :
'It is quite plain that, if an attachment comes to an end validly, then upon a second attachment no Court can refuse to recognise an interest validly created in the meanwhile. It is also plain that if an attachment is wrongly releases, and the right to attach is established subsequently according to law either by appeal or otherwise, the attachment will relate back to the time when it was made.'
We have no doubt that the principle here applied is one of very wide application and that in general where an order of any kind is set aside on appeal or otherwise, the consequential and ancillary orders are restored.
9. The appeal fails on both the points and is dismissed with costs.