Kurian Joseph, J.

What is the difference between attachment before judgment under order XXXVIII and attachement in execution under order XXI? Whether a pre-decretal attachment in under Order XXXVIII would be treated as post decretal attachment in execution under order XXI by virtue of the 1976 amendment to the CPC introducing Rule 57 Under XXI and Rule 11A under order XXXVIII? These are the two interesting issues for consideration in this civil revision petition.

2. Short facts: The Petitioners, husband and wife, are the judgment debtors in E.P.No.684/1999 in O.P.No.175/1985 on the files of the II Additional sub Court, Trichur. The suit was filed for realization of amounts advanced to the petitioners—defendants. An attachment under order XXXVIII Rule 5 was effected on 25-3-1985. The suit was decreed on 8-4-1988. The plaintiff-respondent filed E.P.No.182/1990 against the first petitioner herein by initiating steps under Rule 37 of Order XXI. However, the E.P. was dismissed on 31-1-1992. There was no direction whatsoever that the attachment continued. Thereafter the respondent filed E.P.No.224/1996 against both the petitioners by proceeding against the pre-decretal attached property having an extent of 17.5 cents. That petition was also dismissed on 29-11-1997 without making any observation as to the continuance of the attachment. Thereafter E.P.No.687/1999 was filed for proceeding against the property attached under order XXXVIII Rule 5. In the meanwhile the judgment debtors transferred the property to their son. However, in C.R.P.No.289/2002 it was held by this court that the transfer is fraudulent. It is submitted that a review petition is pending in the matter. In the matter of continuance of attachment, this court directed the Sub Court to consider the question whether the attachment under Order XXXVIII Rule 5 subsists even after the dismissal of the execution petition. By the impugned order dated 13-12-2002 in E.p.No.684/1999 in O.S.No. 171/1985 the Sub Court held that the attachment subsists even after the dismissal of the execution petition. The decision was rendered by following a Full Bench decision of this court reported in Arumughom Ammal v. Nayanar Panicker, 1962 KLT 264.

3. It is the contention of the learned counsel for the petitioner that after the amendment of the Code in 1976 introducing Rule 57 under Order XXI and Rule 11A in order XXXVIII, a pre-decretal attachment under order XXXVIII Rule 5 has to be treated as an attachment in execution under order XXI and therefore by virtue of Rule 57 of Order XXI unless the execution court, while dismissing an execution petition, makes an order as to the continuance of the attachment, the attachment shall be deemed to have ceased on the dismissal of the execution petition. Reliance is placed on the decision of this court in Sebastian Joseph v. Cherian Varghese, 1994 (1) KLT 445. It is to be noted that neither party had brought this decision to the notice of the execution court and therefore, the impugned decision is rendered only by following the Full Bench decision in Arumugham Ammal’s case (Supra).

4. In Sebastian Joseph’s case the learned single Judge has taken the view that after the introduction of the amendment in 1976, there is change in the legal position and hence the Full Bench decision has no relevance. It was held that even in the case of pre decretal attachment under order XXXVIII which continues to exist by virtue of Rule 11 of order XXXVIII, when execution petition is dismissed, unless the court makes a direction with respect to attachment as provided under Rule 57 of Order XXI the attachement will case to exist.

5. In an unreported judgment dated 22-5-2000 in C.R.P.No. 195/2000, without referring to the judgment rendered by Manoharan,J., in Sebastian Joseph’s case Hariharan Nari,J. held that once an attachment before judgment is ordered and effected properly it will continue in force till completion of the execution or until it is vacated except wh