The main legal point established in the judgment is that an attachment before judgment does not come within the scope and ambit of 0.21, R.55 of the (Travancore) Code of Civil Procedure 1100.

1. This is an appeal by, the appellant in S.A. No. 107 of 1958. The appeal is filed in pursuance of a declaration granted under S.5 of the Kerala High Court Act, 1958. The judgment under appeal has been reported in 1961 K.L.T. 597.

2. The appellant was the 3rd defendant in O.S. No. 1541 of 1121 of the 2nd Additional District Munsiff's Court of Trivandrum - the suit from which this appeal arises - and the appellant in A.S. No. 173 of 1956 of the District Court of Trivandrum. The suit was by the 1st respondent before us. It was to set aside Ext. E, an order under 0.21, R.94, of the (Travancore) Code of Civil Procedure, 1100 (0. 21, R.97 of the (Indian) Code of Civil Procedure, 1908). The decision was against him, and it was affirmed by the High Court of Travancore by Ext. F dated 9-12-1121.

3. The fate of the appeal depends solely on the true scope and ambit of 0.21, R.55 of the (Travancore) Code of Civil Procedure 1100:

"Where any property has been attached in execution of a decree but by reason of the decree holder's default the Court is unable to proceed further with the application for execution it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application, the attachment shall cease unless the Court expressly directs that it shall continue in force."

and it is hence not necessary to restate the facts summarised in 1961 K.L.T. 597. It is common ground that if an attachment before judgment does not cease to be operative on the dismissal of an application for execution by reason of the default of the decree-holder, then the appellant must succeed and the appeal has to be allowed.

4. 0.21, R.55 of the (Travancore) Code of Civil Procedure, 1100, corresponds - in all matters material to this case - to 0.21, R.57, of the (Indian) Code of Civil Procedure, 1908. The question as to whether an attachment before judgment comes within; the scope and ambit of the rule has been the subject of controversy among the High Courts in this country.

5. Chitalay sums up the controversy as follows:

"There is a conflict of judicial opinion as to the effect of an order of dismissal of an execution application under this rule upon attachment effected before judgment. The High Courts of Allahabad, Calcutta, Patna and Madhya Bharat have held that the present rule applies only to cases where the property is 'attached in execution of a decree" as the rule itself expressly states, and that consequently, the dismissal of an execution application for default does not put an end to the attachment before judgment. The High Courts of Madras and Travancore-Cochin, the Judicial Commissioner's Court of Nagpur and the Chief Court of Sind have, on the other hand, taken a contrary view. According to them, the words 'any property attached in execution of a decree' should be construed as meaning 'where property has been in a state of attachment in execution' and the decree-holder by electing to take the benefit of 0.38, R.11 and proceeding to execute the decree without a fresh attachment is, in effect, asking the Court to treat the attachment as one in execution; the attachment before judgment therefore ceases upon the dismissal of the application for execution." (C.P.C., 6th Edition, Vol. 3, Page 3044)

6. 0.21, R.55, speaks of property "attached in execution" and we find it impossible to hold that an attachment before judgment comes within the ambit of the rule. All that 0.36, R.11, of the (Travancore) Code of Civil Procedure, 1100 (Order 38, R.11, of the (Indian) Code of Civil Procedure, 1908) says is:

"Where property is under attachment by virtue of the provisions of this Order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property."

This does not mean that an attachment before judgment is transformed into an attachment in execution and should be dee