Dismissal of an execution case under Order 21 Rule 57 of the Code of Civil Procedure results in the cessation of the attachment levied in the execution case, and a fresh attachment is required if the decree holder wishes to proceed with the execution.

( 1 ) AN application under Order 21 Rule 58 of the Code of Civil Procedure having been dismissed, the claimants have preferred the present appeal.

( 2 ) THE appeal is directed against the order dated 11. 8. 1980, passed in Misc. Case No. 8/78 arising out or Title Execution case No. 19 of 1970 of the 1st court of the learned Subordinate Judge at Alipore.

( 3 ) THE appeal raises an important and a somewhat intriguing question of law. It arises in the following way:

( 4 ) THE appellants petitioners (hereinafter called the petitioners) claim to have purchased 9 cottahs, 7 chittaks and 3sq. ft. of land comprised in premises No. 8/1d, Diamond Harbour Road forming a part of old 10a, Diamond Harbour Road and No. 2 Judges' Court Road, from one Bharat Sumsher Jung Bahadur Rana on 29. 3. 1972. After purchase the petitioners constructed pucca structures thereon which has subsequently been renumbered as 8/1d, Diamond Harbour Road. The petitioners came to know sometime in February, 1978 that this property has been advertised for sale in execution of a decree. This put the petitioners to enquiry and after having obtained information from Court they came to learn that Title Execution case was started by the decree holder opposite party against the judgment debtor Maharaj Kumar Maloychand Mahatab and that the said execution case was eventually dismissed for default on 9. 5. 1972. There was an attachment of the vacant land in the said execution case on 3. 8. 1970. The judgment debtor filed a misc. case under Order 21 Rule 58 of the Code which was ultimately dismissed for non-prosecution on 8. 4. 1972. The order for sale and the advertisement were made in connection with the said execution case pursuant to an application by the decree holder for a fresh attachment on 27. 9. 75. This was proceeded by an order dated September 26, 1975, restoring the execution case to file on the prayer of the decree holder. Attachment was levied again on October 3, 1975, which the petitioner came to know in February,1978 and having ascertained the facts filed the application under Order 21 Rule 58 of the Code on March 16, 1978. This application was registered as Misc. case No. 8/78.

( 5 ) THE decree holder, opposite party filed an objection to the petition and by the impugned order the learned Subordinate Judge has dismissed the application. It appears upon a perusal of the judgment under appeal that the learned Subordinate Judge proceeded on the footing that the attachment was effected on August 3, 1970 and that the transfer effected thereafter by the judgment debtor to Bharat Sumsher Jung Bahadur Rana to the claimants were made during the subsistence of the order of attachment. The learned Subordinate Judge further held that the petitioners purchased the property without making proper enquiries from proper quarters and as such the purchase was not a bonafide one. In that view of the matter the petitioners were found net entitled to be release of the property from attachment as claimed.

( 6 ) MR. Bhabra appearing on behalf of the appellants has challenged the propriety of the order by contending that even though the property might have been under attachment levied on August 3, 1970 at the time of the petitioners' purchase in 1972, the execution case having been dismissed for default thereafter the attachment could no longer subsist and that the second attachment being made in 1975 the purchase made by the petitioners in 1972 could not be affected thereby. The point thus raised comes to this as to what is the effect of dismissal of an execution case under Order 21 Rule 57 of the Code in so far as the attachment levied in the execution case is concerned and whether with the restoration of the execution case the attachment also is revived.

( 7 ) THE learned Advocate appearing on behalf of the decree holder respondent contends that there is no legal evidence to show the title of Bharat Sumsher Jung Bahadur Rana from whom