Form No. 5 of Appendix F of the Code of Civil Procedure is to be used for conditional attachment before judgment and the manner of attachment mentioned in Rule 7 of Order 38 in case of immovable property relates to the provision made in Sub-Clause (2) of Rule 54 of Order 21.

Mahapatra, J.

1. Defendant Mo. 1, who is the appellant, had obtained a money decree against defendant No, 2 in Money Suit No. 206 of 1949 on the 19th of February, 1S51, and had levied an execution of the same in Execution case No. 316 of 1954, When he had applied for sale of the suit properties, an objection was raised by the plaintiff under Order 21 Rule 58 of the Code of Civil Procedure on the ground that he had purchased the properties for Rs. 2500.00 from defendant No. 2 by a registered deed of sale on the 22nd of February, 1955, and had come in possession of the same. The judgment-debtor (defendant No. 2). having no interest in those properties, they could not be brought to sale to satisfy the decree against him (defendant No. 2). This claim of the plaintiff was overruled and he, therefore, brought a suit under Order 21 Rule 63 of the Code of Civil Procedure for declaration of his title to and for release from attachment and sale of the properties.

It should be mentioned here that while the money suit of defendant No. 1 against the father of defendant No. 2 was pending, the former (defendant No. 1) had obtained an order for attachment of some of the suit properties before judgment on the 16th of February, 1949, and that was made absolute on the 22nd of February, 1950. In the case for the execution of the money decree, that attachment continued, and on that basis defendant No. 1s contention was that the sale by defendant No. 2, the judgment debtor, in favour of the plaintiff was void under Sec. 64 of the Code of Civil Procedure.

2. The main issue in the suit was:

"Has the plaintiff got title to the land in dispute. If so, is he entitled to a decree for the reliefs claimed ?"

The trial court found that the sale by defendant No. 2 to the plaintiff was for consideration and the attachment obtained by defendant No. 1 in his money suit against the father of defendant No. 2 before judgment was effective in regard to survey plots 112, 422, 135, 3035 and 3041, and as such, the plaintiffs purchase of those properties was void as against all claims enforceable under that attachment. In regard to other properties of the suit, in absence of any attachment by the court, the plaintiffs purchase was held to be valid and his suit was decreed in that respect.

Against that judgment, defendant No. 1 appealed, and the plaintiff also filed a cross-objection to the dismissal of his suit about the five survey plots mentioned above. The lower appellate court took the view that the provisions under Rule 7 of Order 38, Civil Procedure Code, in regard to attachment of immoveable properties before judgment, had not been followed In Money Suit No. 206 of 1949 brought by defendant No. 1, and as such, there was no valid attachment to defeat the plaintiffs purchase of any of the suit properties. In that view, the decree passed by the trial court in favour of the defendant No. 1 was reversed and the entire suit was decreed. Defendant No. 1 brought the second appeal to this Court against that judgment.

3. For the appellant, it was contended that of the suit properties, survey plots 112, 422, 135, 3035 and 3041 had been validly attached before judgment in his money suit against defendant No. 2s father, and that attachment continued in Execution Case No. 316 of 1954 where he had applied for sale of the attached properties to satisfy his decree. It appears from the judgment of the trial Court that Ext. E, the order-sheet of Money Suit No. 205 of 1949, showed that the attachment was served and notice was issued to the defendants of the money suit to show cause; no cause, however, was shown and the order of attachment was made absolute. There is no dispute that there had been an attachment and it was in the prescribed form No. 5 given in appendix F, Schedule I of the Code of Civil Procedure. An objection of the respondent (the plaintiff) was that in that form of attachment there was no order prohibiting the defendants to transfer or charge the property