Order 21, Rule 57 C. P. C. applies to attachment before judgment as well as attachment in execution of a decree, and when an execution petition is dismissed for default of the decree-holder, the attachment shall cease.

CHANDRA REDDY, C. J.

( 1 ) THIS civil miscellaneous second appeal was referred by Ranganadham Chetty J. to be heard by a Bench, as he thought that it raises an important question relating to the interpretation of Order 21, Rules 54 and 57, C. P. C.

( 2 ) THE appellant is the purchaser of the properties in dispute in a Court auction. These properties were brought to sale in execution of a decree obtained by the predecessors-in-interest of the appellant in O. S. No. 102 of 1948.

( 3 ) THE subject-matter of the appeal, which is land of an extent of Ac. 6-95 cents, was attached by the plaintiff in that suit before judgment and notice of the attachment was served on the respondent. The respondent had in his favour an agreement of sale of this property executed by the judgment-debtor and other members of his family on 5-3-1948, i. e. , mote than six weeks before the institution of O. S. No. 102 of 1948. He obtained a sale deed in respect of this land on 2-6-1948.

( 4 ) O. S. No. 102 of 1948 was decreed on 6-10-1948. Thereafter, the decree holder filed E. P. No. 116/49 for sale of this property and this was dismissed on 17-10-1949 for default of the decree holder. The next E. P. also shared the same fate but for want of bidders. For the third time, an E. P. was taken out in 1951. Pending these proceedings, the respondent intervened with E. A. No. 807 of 1951, the claim petition, on 4/09/1951- The trial court rejected this application and directed the sale to proceed and the property was actually sold and purchased by the appellant; and the sale was confirmed on 14-8-1952. The matter was taken in a appeal to the subordinate Judges Court, by the respondent. By way of abundant caution, ho also laid an action (O. S. No. 242 of 1952) under Order 21, Rule 63 C. P. C.

( 5 ) THE appellate court allowed the appeal and remanded the case to the trial court with a direction that E. A. No. 807/51 should be tried along "with the suit (0. S. No. 242 of 1952) filed by the respondent.

( 6 ) THE trial court again dismissed the claim petition as also the suit in the view that the agreement of the sale relied on by the plaintiff and the sale deed dated 2-6-1948 were not true and supported by consideration and that they were brought into existence collusively and fraudulently with a view to defeat the rights of the attaching decree-holder.

( 7 ) THE respondent brought two appeal to the Subordinate Judges Court, one against the order of his claim petition and another against the decree and judgment in O. S. No. 242/52. The Subordinate Judge disagreed with the trial court on the question as to the nature of the transaction and reversed the decree under appeal. He was further of opinion that the sale deed dated 2-6-1948 was valid and conferred a title on the vendee, despite the attachment before judgment, for the reason that the attachment ceased, having regard to the fact that the first execution petition was dismissed for default of the decree-holder. The learned Judge thought that it was unnecessary to allow the appeal against the judgment in O. S. No. 242 of 1952, as the decision in the claim petition governed that also. The alienee from the auction purchaser, who is aggrieved by this decision, has preferred this civil miscellaneous second appeal.

( 8 ) WHEN the matter came for hearing before Ranganadham Chetty J. in June 1959, it was argued before him that the decisions of the Madras High Court which ruled that even if the executing court while dismissing the execution petition for default of the decree-holder does not specifically terminate the attachment, the attachment ceases by reason of the wording of Order 21, Rule 57 C. P. C. required reconsideration. It was urged before him that in the absence of direction for the cessation of a subsisting attachment made by the court, the attachment would continue and that this aspect of the matter was overlooked in the Madras rulings. The learned Judge thought that there was some substance in this argument an

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