The attachment before judgment merges with the final order, and the provisions of Rule 57 of Order 21 apply to cases of attachment before judgment under Order 38, Rule 5.

( 1 ) THE appeal arises out of the order passed in Misc. 89/87 filed in Ex. Case No. 51/86. The execution proceedings are pursuant to the decree passed in O. S. No. 65/88 of the file of the Civil Judge, mandya.

( 2 ) IT has been a torturous litigation for the parties and in particular to the appellants who are litigating as LRs. of the original plaintiff one Linga Bhatta. It appears that the original plaintiff has bountifully left a legacy of perennial litigation for his third generation. Be it as it may, this appeal poses an interesting question of law about the validity and effect of attachment of property in execution of a decree with reference to the provisions contained in Order 38, Rule 11 and Order 21, Rule 57, CPC.

( 3 ) THE original plaintiff successfully obtained a decree for recovery of money against the husband of the second respondent in a sum of Rs. 80,000/- and odd with costs and interest. The suit was decreed on 16-1 -1970, followed by an execution in Ex. Case No. 41 / 70 by the original plaintiff; successfully a sum of Rs. 75,000/- came to be recovered by sale of two properties. The execution petition was closed on 1-4-1972. However, the second respondent preferred an appeal against the judgment and decree in RFA 95/ 71. The appeal was dismissed on 26-2-1974. The legal representatives of the decree holder filed another execution case in Ex. No. 998/ 74 for recovery of the balance amount. The said application came to be disposed of on 30-5-1974 without any effective recovery of any part of the balance due. Again another execution petition was filed in Ex. No. 115/ 74 on 11-6-1974 which came to be dismissed for default on 9-2-1979. In the said proceedings also no amount was recovered. Thereafter the present execution case is filed on 24-2-1986. The first respondent filed an application under Order 21, Rule 58 challenging the attachment on the ground that the property belongs to him and cannot be subjected to execution for recovery of the monies due under the decree.

( 4 ) IT may be relevant to note that the appellant also claimed that he purchased the property in question in a court auction in Execution case Ex. 125/79 on 9-4-1979. However the records reveal that the execution cases referred by the appellant does not pertain to the execution of the decree in question and it pertains to some L. A. C. proceedings. Therefore the Counsel for the appellant fairly concedes that the claim of title by parties under court auction dated 9-4-1979 is not pressed into service. By gross mistake, the appellant was misled to believe that the property is purchased in his name in Ex. No. 125/79. The later enquiries reveal that there was no valid purchase made by the appellant in the court auction.

( 5 ) A contention is raised in the Misc. proceedings by the appellant that during the pendency of suit in O. S. 65/68 an order of attachment before judgment was obtained under Order 35, Rule 5 and by virtue of the provisions contained in Order 38, Rule 11, the attachment effected before judgment continues until the decree is fully satisfied or otherwise becomes inexecutable. It was further contended that the provisions of order 21, Rule 57 does not apply to the attachment made before judgment under Order 38, Rule 5, CPC. In that view submitted that the dismissal of the earlier execution petitions does not take away the effect of attachment before judgment obtained in the suit and the attachment continues notwithstanding dismissal of the execution petitions since the attachment obtained before judgment stands on a different footing in view of the provisions contained in Order 21. Rule 57, CPC.

( 6 ) FOR convenient reference the original and amended provisions of Order 21, Rule 57 are reproduced under :old after 1976 amendment 57. Determination of attachment : 57. Determination of where any prop- attachment : Where any erty has been at- property has been at- tached in execu- tached in execution of tion of a decree, a d