The main legal point established in the judgment is that the attachment before judgment ceases to exist on the dismissal of the execution petition if the court does not make a direction with respect to the attachment as required by O.21 R.57 CPC.

L. Manoharan, J.

1. Both the Civil Revision petitions arise from the orders in the execution of the decree in O.S 646 of 1989.

2. Revision petitioner in C.R.P.2002 of 1993 filed E.A.176 of 1992 under O.21 R.58 CPC and the revision petitioner in C.R.P. 2006 of 1993 filed E. A. 179 of 1992 under O.21 R.58 CPC. The said E.As were dismissed by orders dated 8.7.1993. The said orders are under challenge in these CRPs. These C.R.Ps. are disposed of by this common order as common question arises for determination in both the Civil Revision Petitions.

3. First respondent instituted O.S.646 of 1989 before the Principal Subordinate Judge's Court, Kottayam against respondents 2 and 3 for realisation of the money. Pending the suit, as per an order under O.38 R.5 CPC the property of the revision petitioner in C.R.P 2002 of 1993 was attached. And the property of the revision petitioner in C.R.P. 2006 of 1993 also was attached before judgment under O.38 R.5 CPC. The suit was later decreed. On learning that the execution is being taken out against their properties, petitioners filed petitions under O.21 R.58 CPC. Both of them claimed right over the property as per sale deeds executed by the third respondent. They maintained that their properties are not liable to be proceeded against in execution of the decree in the said suit. Petitioners would allege that though the claim petitions came up on several occasions, the first respondent did not file any objection. Later, they allege that the E.P. was dismissed as not pressed. On the date of dismissal of the E.P. itself the claim petitions filed by the petitioners were also dismissed. The impugned order reads: "E.P. dismissed. So EA also dismissed without prejudice to parties right if any".

4. It was contended by the learned counsel for the revision petitioners that, it was illegal for the court to dismiss the claim petitions merely because the E.P. was dismissed. According to him, the attachment being one under O.38 R.5 CPC, the same will not cease to exist when the E.P. is dismissed. He sought to make a distinction between an attachment in execution and an attachment before judgment In short his contention is with respect to an attachment under O.38 R.5 CPC, O.21 R.57 CPC has no application. Therefore, according to the learned counsel the attachment would continue in spite of the dismissal of the E.P., consequently it was obligatory for the lower court to adjudicate the claim, that having not done the impugned order is liable to be set aside.

5. Reliance was made by the learned counsel for the revision petitioners on the decision in Arumughom Ammal v. Nayanar Panicker (1962 KLT 264-FB) in support of the aforesaid contention. Learned counsel for the respondents pointed out that as per O.38 R.11 A, O.21 R.57 CPC will apply to an attachment under O.38 R.5 CPC also.

6. In the decision in Arumughom Ammal's case (1962 KLT 264 - FB) it is held that O.38 R.11 does not have the effect of transforming an attachment before judgment into an attachment in execution and deem it as such for the purpose of O.21 R.57. Consequently it was held that the dismissal of execution application for default does not put an end to attachment before judgment.

7. O.21 R.57 CPC enjoins that when the execution court passes an order dismissing the execution petition the court shall direct whether the attachment shall continue or cease, and shall also indicate the period up to which such attachment shall continue or the date on which such attachment shall cease. Sub-rule (2) states that if the court omits to give such direction, the attachment shall be deemed to have ceased. There is no case to the effect, while dismiss the E.R the court has made any direction as to the attachment. Therefore as per sub-rule (2) of R.57 of O.21 CPC the attachment should cease.

8. Now the moot question is whether the O.21 R.57 CPC will apply in the case of attachment before judgment. As noticed Arumugham Ammal's case (1962 KLT 264 -FB) states that th