1. This is an appeal against the dismissal of an execution case and an order withdrawing the attachment of the judgment-debtor No. 70's share in the attached properties. Certain rent decrees were passed against this judgment-debtor and others and against these decrees nine title suits were instituted on the ground that the rent decrees were null and void having been obtained by traud and misrepresentation. The trial Court issued an order for injunction restraining execution of the rent decrees pending the hearing of the title suits. Against that order there was an appeal to the District Judge of Backerganj who modified the order to the extent that he ordered that execution might proceed against the tenures in arrears only without prejudice to the rights of the plaintiff which might be determined in the title suits and that all other proceedings should be stayed pending the disposal of the title suits. Thereafter the Subordinate Judge in the execution case passed the order which is complained of, namely, that as the title suits were not yet ripe for hearing and it was not known when they would be disposed of, the execution case before him which was already pending for a long time need not be kept pending and might be conveniently disposed of. He therefore dismissed the execution case and withdrew the attachment of the judgment-debtor No. 72's share in the properties.
2. As pointed out in the disposal of the previous rule which was issued by this Court against that order, it does not appear that the learned Subordinate Judge was justified in dismissing the execution case entirely. There does not seem to be any reason why the decree-holder should merely, because the judgment-debtor has filed a title suit alleging fraud be deprived of the security for payment of the decretal amount which he has acquired by attachment of the judgment-debtor's property. The attachment even though of a property which is out side the tenures in arrears is not illegal and he is entitled to attach the property and there is no reason why he should relinquish the advantage he has so gained merely because of the institution of a title suit, unless the judgment-debtor is prepared to give security for payment of the decretal amount. Under the order of the District Judge it appears that the decree-holder is entitled to proceed against the tenures in arrears; and though the order states without prejudice to the rights of the plaintiff' it does not appear to me that it excludes the share of the plaintiff from the execution proceedings against the tenures in arrears though this is the interpretation which has been put upon it by the Subordinate Judge. In any case I think the learned Judge was not entitled to dismiss the execution case and withdraw the attachment complained of unless the judgment-debtor gave security for the alleged amount of his share in the decretal debt. I would therefore order that the execution case be dismissed and the attachment withdrawn on the judgment-debtor giving security for his share of the debt and not otherwise; unless therefore the judgment-debtor gives security or his share of the debt within a month from this date the order of the learned Subordinate Judge dismissing the execution case and withdrawing the attachment will be reversed and the execution case and the attachment will be restored. There will be no order as to costs.
3. I agree.