GANGAPPA Vs. BOREGOWDA

JUDGEMENT

(1.) In a suit on a pronote, the plaintiff obtained an attachment before judgment. The suit was dismissed in the trial Court. Subsequent to the dismissal of the suit the property was sold by the original owners to third persons. On appeal from the judgment of dismissal the suit was decreed and that decision was confirmed in the second appeal. In pursuance of the ultimate decree the properties which were attached before judgment in the trial Court were brought to sale and were purchased by strangers and the said rule having been confirmed, the properties were delivered by the court to the purchasers. The material point on which the decision in this appeal turns is whether the attachment before judgment, which ceased with the dismissal of the suit, is revived, when the decision of dismissal is reversed by the euperior Court. In 32 Mys C. C. R. 97 (A), it is laid down that

(2.) This is a reference to the Full Bench by Venkata-ramaiya and Balakrishnaiya JJ. The point of law referred to us is :

(3.) The earliest case in which the matter appears to have been considered by this Court is in 19 Mys OCR 275 (D), where Chandrasekhara Aiyar and Wallace JJ. held that the dismissal of a suit does not by itself operate as a release of an attachment before Judgment, ordered in the course of the suit, and that such an attachment must be deemed to subsist unless and until it is expressly withdrawn by a further order of the Court. In that case the plaintiff's suit for recovery of money due on accounts was dismissed by the Munsiff, and on appeal decreed by the District Judge, who set aside the order of dismissal; and the point arose whether the attachment before judgment, which had been passed by the Munsiff, was available and operated as against a mortgage of the attached properties made by the defendants subsequent to the dismissal of the suit. Chandrasekhara Aiyar J. considered that the circumstance that Section 488 of the Code of 1882 which applied to that case (corresponding to Order38, Rule 9 of the new Code) no doubt made it obligatory on the Court to remove the attachment when the suit was dismissed. He, however, thought that that provision seemed scarcely to warrant the conclusion that the attachment is to be deemed to have been removed even without an order of withdrawal and the circumstance that the Legislature had thought it necessary that a formal order of withdrawal should be passed tended rather to suggest that the attachment was intended to subsist till it should be formally withdrawn by an order. Wallace J. concurred with him and thought that if it was intended that the attachment should cease automatically on the furnishing of security or on the dismissal of the suit, the section would be worded in a manner similar to Order 21, Rule 57, Civil P. C.