MADANLAL CHHOTELAL Vs. RAMPRAKASH GHASIRAM

JUDGEMENT

(1.) THIS appeal involves the only question whether in a suit the attachment before judgment effected, which terminates on the dismissal of the suit by the trial Court, is automatically revived by the fact that the appellate Court, reversing the dismissal of the suit, passes a decree in favour of the plaintiffs.

(2.) THE appellants in their money suit against the respondent secured an attachment before judgment from the trial Court, Ultimately, the suit was dismissed. Upon an appeal, the first appellate Court decreed the plaintiffs' claim by reversing the judgment of the trial Court. Thereafter, the appellants took steps to get a proclamation of sale issued without securing a fresh order of attachment from the executing Court. The respondent-judgment-debtor raised an objection that the property could not be sold without and fresh order of attachment. The executing Court, as also the first appellate Court, held that an appeal being a continuation of the suit, the appellate decree revived'the attachment before, judgment effected in the suit. The learned Single judge reversed that view of the courts below and upheld the judgment-debtors's objections. The answer to this question depends on the interpretation of the phrase when the suit is dismissed' occurring in Order 38, Rule 9. Civil Procedure Code.

(3.) THERE is a conflict of views on this question. I propose to discuss the question in all its aspects in view of the conflict Order 38 Rule 9, Civil Procedure Code is as under:-