@JUDGMENTTAG-ORDER
Kurian Joseph, J.@mdashWhat is the difference between attachment before judgment under Order XXXVIII and attachment in execution under
Order XXI? Whether a pre-decretal attachment under Order XXXVIII would be treated as post decretal attachment in execution under Order
XXI by virtue of the 1976 amendment to the CPC introducing Rule 57 under Order XXI and Rule 11A under Order XXXVIII? These are the
two interesting issues for consideration in this civil revision petition. Short facts: The petitioners, husband and wife, are the judgment debtors in E.P.
No. 684/1999 in O.P. No. 175/1985 on the files of the II Additional Sub Court. Trichur. The suit was filed for realisation of amounts advanced to
the petitioners - defendants. An attachment under Order XXXVIII Rule 5 was effected on 25-3-1985. The suit was decreed on 8-4-1988. The
plaintiff - respondent filed E.P. No. 182/1990 against the first petitioner herein by initiating steps under Rule 37 of Order XXI. However, the E.P.
was dismissed on 31-01-1992. There was no direction whatsoever that the attachment continued. Thereafter the respondent filed E.P. No.
224/1996 against both the petitioners by proceeding against the pre-decretal attached property having an extent of 17.5 cents. That petition was
also dismissed on 29-11-1997 without making any observation as to the continuance of the attachment. Thereafter E.P. No. 687/1999 was filed
for proceeding against the properly attached under Order XXXVIII Rule 5. In the meanwhile the judgment debtors transferred the property to
(sic) in C.R.P. No. 289/2002 it was held by this court that the transfer (sic) submitted that a review petition is pending in the matter in the (sic)
attachment this court directed the Sub Court to consider the (sic) attachment under Order XXXVIII Rule 5 subsists even after the (sic) execution
petition. By the impugned order dated 13 12 2002 in L.P. (sic) O.S. No. 171/1985 the Sub Court held that the attachment (sic) dismissal of the
execution petition. The decision was rendered by following (sic) decision of this court reported in Arumughom Ammal v. (sic) KLT 264.
2. It is the contention of the learned counsel for the petitioner that after the (sic) of the Code in 1976 introducing Rule 57 under Order XXI and
Rule (sic) XXXVIII a pre-decretal attachment under Order XXX VIII Rule 5 (sic) as an attachment in execution under Order XXI and therefore
by (sic) Order XXI unless the execution court, while dismissing an (sic) order as to the continuance of the attachment, the attachment shall be (sic)
ceased on the dismissal of the execution petition. Reliance is placed on the (sic) this court in Sebastian Joseph v. Cherian Varghese. 1994(1) (sic)
that neither party had brought this decision to the notice of the execution (sic) therefore, the impugned decision is rendered only by following the
(sic) in Arunugham Ammal''s case (supra).
3. In Sebastian Jospeh''s case the learned single Judge has taken the view (sic) the introduction of the amendment in 1976, there is change in the
legal position and hence the Full Bench decision has no relevance. It was held that even in the case of pre decretal attachment under Order
XXXVIII which continues to exist by (sic) 11 of Order XXX VIII. when execution petition is dismissed, unless the (sic) direction with respect to
attachment as provided under Rule 57 of (sic) attachment will cease to exist.
4. In an unreported judgment dated 22-5-2000 in C.R.P.No.(sic) referring to the judgment rendered by Manoharan, J., in (sic) Hariharan Nair, J.,
held that once an attachment before judgment is (sic) properly it will continue in force till completion of the execution or aula (sic) except where the
suit happens to be dismissed for default. In view of the (sic) views Padmanabhan Nair J. in C.R.P. No. 288/2002 referred the (sic) authoritative
pronouncement by order dated 1-11-2002. Since the (sic) the parties in the said case was settled, reference was not answered (sic) Kuriakose. J.
had posted this case also in view of the (sic) taken up along with the referred revision petition and thus the matter (sic) Us.
5. In order to appreciate the position it is necessary to look into the provisions of the CPC relating to attachment before judgment and also
attachment in execution. Order XXXVIII Rule 5 provides for attachment before judgment. Order XXXVIII Rule 7 deals with the mode of making
attachment wherein it is provided that ""save as otherwise expressly provided, the attachment shall be made in the manner provided lot the
attachment of property in execution of a decree"". Thus as far as the procedural aspects of the attachment under Order XXXVIII are concerned,
recourse will have to be made to the procedure in execution proceedings provided under Order XXI. Order XXXVII Rule 11 provides that
property attached before judgment need not be re-attached in execution proceedings. It reads as follows:-
Where properly 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 properly.
Order XXI Rules 41 to 57 deal with attachment of property in execution of a decree. Order 21 Rule 57 introduced by the 1976 amendment deals
with determination of attachment, which reads as follows:-
57. Determination of attachment:- (1) Where any property has been attached in execution of a decree and the Court, for any reason, passes an
order dismissing the application for the execution of the decree, the court shall direct whether the attachment shall continue or cease and shall also
indicate the period up to which such attachment shall continue or the date on which such attachment shall cease.
(2) If the Court omits to give such direction, the attachment shall be deemed to have ceased.
6 It is clear from the provisions referred to above that once an attachment under Order XXXVIII at the pre decretal stage is made, it will continue
in force until full satisfaction of the decree or till the attachment is lifted. Such property attached under Order XXXVIII can be proceeded against
under Order XXI in execution of the decree without re-attachment. But the question is whether Rule 57 will apply in such cases. It may be noted
that Order XXI Rule 57 applies only in respect of any property attached in execution of a decree. Therefore, it has to be seen that when an
Execution Petition is dismissed, unless the execution court indicates the continuance of the attachment made under Order XXI. it would be deemed
to have ceased. But as far as the execution against a property attached under Order XXXVIII is concerned, Rule 57 has no application since the
provision deals only with attachment made in execution proceedings. In other words, when an execution petition for executing a decree by
proceeding against a property attached at the pre decretal stage under Order XXXVIII is dismissed, even it the execution court does not give any
indication as to the continuance of the attachment. the attachment would not cease. Attachment under Order XXXVIII ceases to exist only by the
full satisfaction of the decree or when the attachment is otherwise lifted, with the only exception under Order XXXVIII Rule 11A. Order XXXVIII
Rule 11A introduced by 1976 amendment reads as follows:-
11A. Provisions applicable to attachment. - (1) The provisions of this Code applicable loan attachment made in execution of a decree shall, so far
as may be. apply to an attachment made before judgment which continues after the judgment by virtue of the provisions of rule 11.
(2) An attachment made before judgment in a suit which is dismissed for default shall not become revived merely by reason of the fact that the
order for the dismissal of the suit for default has been set aside and the suit has been restored.
7. Rule 11A introduced by the 1976 amendment under Order XXXVIII provides that the provisions of the Code applicable to an attachment
made in execution of a decree applies to an attachment made before judgment which continues after the judgment. Obviously what is indicated in
the provision is the procedural aspects on attachment in execution, modification of the order of attachment and the lifting of attachment. It has to be
seen that those aspects are provided only under Order XXI. In fact sub-rule (2) of Rule 11A makes the position clear. It is provided therein that
an attachment made before judgment in a suit which is dismissed for default shall not become revived merely for the reason that the suit was
restored after setting aside the order of dismissal for default. Thus sub-section (2) carves out the only exception to Rule 11 of Order XXXVIII in
the case of pre decretal attachment. Apparently it is intended only to prevent any dilatory tactics on the part of the decree-holder. In all other
aspects, the Code respects the position of the decree holder and protects him as far as a pre decretal attachment is concerned. What is intended
by Rule 11A of Order XXXVIII is the additional protection to the decree holder which is available in proceedings for execution under Order XXI.
Otherwise the position of the decree holder with a pre decretal attachment would be weaker when compared to the decree holder with an
attachment at the execution stage. The Code obviously does not intend such an effect.
8. Analysing the facts of the instant case it may be noted that the petitioners - judgment debtors transferred the property in favour of their son after
the dismissal of E.P. No. 224/1996. In C.R.P. No. 289/2002 this Court has already held that the transfer is fraudulent. Since a review petition is
said to be pending, we refrain from making any observation in the matter. Anyhow the transfer apparently is not bona fide. It is calculated to defeat
the decree. If the petitioners'' contention is accepted it would lead to failure of justice. The legislature could not have intended such a consequence
while introducing Rule 11A under Order XXXVIII. The provision is additionally intended to secure and ensure justice.
9. It is significant to note that it is not Rule 57 or Rules 41 to 57 dealing with attachment under Order XXI that is made applicable to an attachment
before judgment as per Rule 11A. What is stated is ""the provisions of the Code Applicable to an attachment made in execution of a decree shall,
so far as may be. apply loan attachment made before judgment...."" Rules 11 and 11A under Order XXX VIII read together with the special
significance to the sole exception under Rule 11A(2) certainly make it clear that an attachment under Order XXXVIII continues until the decree is
fully satisfied, or until it is specifically modified or lifted. Of course the attachment ceases to exist when the sun is dismissed for default.
10. With great respect we are unable to agree with the view taken in Sebastian Joseph''s case. Order XXI Rule 57 does not apply in the ease of
attachment under Order XXXVIII by the operation of Order XXXVIII Rule 11 A. We overrule the decision in Sebastian Joseph''s case. Though
for reasons not stated in the order under revision, we do not find any illegality or irregularity in the view taken by the execution court. There was a
pre decretal attachment of the scheduled property ever since 25-03-1985. Thai continued to exist inspite of the dismissal of E.P. No. 224/1996.
The attached property can be proceeded against in execution of the decree. The C.R.P. is dismissed. No costs.