P. VENKATARAMA REDDY, J.

( 1 ) THE Civil Revision Petition is filed against an ex parte order purportedly passed under Order XXXVIII Rule 5 read with order XXI Rule 46 of the Code or Civil procedure directing the third party to the suit, viz. , BHEL to withhold an amount of rs. 1,75,000/- from out of the voluntary retirement benefits payable to petitioners 1 and 2. This order was passed on 23-8-1999 and LA. was posted to 6-9-1999. The learned Counsel says that a counter has been filed and the matter is being contested. It is not known why the final orders are not passed in LA. so far.

( 2 ) THE learned Counsel for the petitioners relied on the judgment of a learned single Judge of this Court in j. Balakrishna vs. Union Bank of India. The learned single Judge was of the view that the attachment under Order XXXVIII Rule 5 of CPC cannot be ordered against a third party and there is no procedure prescribed for impleading third parties in the LA. filed for attachment. The learned Judge further held as follows:"the money in the hands of third party also cannot be attached as a garnishee (debtor s debtor) unless a decree is passed in the suit. Such money can only be attached in execution proceedings and not in pendency of the suit. Therefore, this court holds that both the orders in the ias are totally illegal and uncalled for. "

( 3 ) THIS decision was followed by another learned single Judge in C. R. P. No. 4331 of 1999 without any further discussion. With great respect, I must say that Order XXXVIII rule 7 was not noticed by the learned judges. It reads as follows:"save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree. "

( 4 ) ORDER XXI Rule 46 which occurs in the chapter "execution of decrees and orders" bears the heading "attachment of debt, share and other property not in possession of judgment-debtor". The said rule provides for attachment by a written order prohibiting the debtor from making payment until further orders of the Court. So also, in the case of other movable properties, the person in possession of the same can be prohibited from giving it over to the judgment-debtor. The procedure for issuing notice to garnishee etc. , is provided for in the Rule 46-A and the following rules. Thus, the procedure and modalities of attachment for recovery of decretal amount applies mutatis mutandis to attachment before judgment as well. Otherwise the rules contained in Order XXXVIII do not lay down any particular method of attachment before judgment. It only specifies the circumstances and the contingencies in which attachment before judgment could be ordered by the Court, the adjudication of claims to property and the removal of attachment. If the rules of attachment for execution of decree are not brought within the gamut of Order XXXVIII rules 5 and 6, there will be vacuum and the provision itself becomes unworkable. That is the reason why Rule 7 of Order XXXVIII has been advisedly introduced into the chapter "attachment before judgment".

( 5 ) RULE 11-A is also worth noticing:"provisions applicable to attachment: (11-A ). 1. The provisions of this Code applicable to an 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".

( 6 ) THERE is plethora of decisions in which attachment provisions contained in order XXI have been applied while ordering attachment before judgment under order XXXVIII. Suffice it to cite the Full bench judgment of Patna High Court in tapeshwar vs. Santokh. In that decision, it was observed inter alia that Rule 7 in terms provides that the manner of attachment must be the same as in regard to the attachment of properties in course of execution of a decree and therefore it will attract Rule 54 in case of immovable properties. As long back as in 1932. Curgenven, J. in Alwar Aiyangar vs. Subra

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