JAIN, J.—This appeal by the judgment-debtor is directed against the order of the Additional District Judge No. 1, Jaipur City dated 5-11-73 passed in Execution Case No. 15/1972.

2. Facts leading to this appeal are as follows :—

The respondent obtained a money decree against the appellant, judgment-debtor on 23-11-62. This decree was upheld in appeal by the High Court on 29-7-70. During the pendency of the suit the decree-holder got the property of the judgment-debtor attached under 0.38 Rule 5 C. P. C. He took out execution application on 3-4-63 which was dismissed on 31-8-63 for default. His second application dated 30-8 71 for execution was also dismissed on 22-1-72 on account of non prosecution. The decree holder then applied for the sale of the property under attachment on 29-3-72. The judgment-debtor filed an objection that the property cannot be sold as no fresh attachment has been sought. According to him the attachment had ceased to exist after the first execution application was dismissed. There were other objection as well but I am not concerned with those objections in the present appeal. The learned executing Court held that the attachment before judgment survived for every execution application, and no fresh order of attachment was necessary for proceeding to effect sale. This order has been challenged by the judgment-debtor in this Appeal.

3. I have heard learned counsel for the parties at length. Various authorities representing the conflicting views were read out before me. Mr Kasliwal learned counsel appearing for the appellant placed reliance on the view taken up by the Madras High Court in Meyappa Chettiar vs. Chidambaram Chettiar(l). This is a decision of full bench of five Judges Three Judges were of the view that the provisions of Order 21 Rule 57 apply to an attachment before judgment which is converted into attachment in execution when the decree passed in the suit is said to be executed. It will be useful to reproduce Order 21 Rule 57 here :—

"R. 57—Where any property has been attached in execution of a decree but by reason of the decree-holders 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."

4. Two learned judges of that Court Schwabe C. J. and Wallace J. were of the opinion that the attachment before judgment lasts until the Court puts an end of it by an order to that effect, but until it is otherwise brought to an end by reason of any other provisions of Order 38 but that it cannot by implication to be brought to an end by the provisions of Order 21 Rule 57 C P.C. It may also be noticed here that this full bench considered its earlier view expressed in Venktasubbiah vs. Venkata Seshaiya (1918) 42 Madras 1). Where it was held by Phillips and Kumaraswamy Sistri, JJ. that Order 21 Rule 57 C.P.C. has no application to attachment before judgment. Hence an attachment before judgment does not cease to have effect because of the dismissal of the subsequent application for execution for default or prosecution. This view was reconsidered by the full bench in Meyappa Chettiars case where by majority it over-ruled the earlier view and held that a party, who has obtained an attachment before judgment and has subsequently had his execution petition dismissed for want of due diligence in presenting the necessary pape, s to the Court loses the priority that he had enjoyed by reason of his attachment before judgment. It was also held that attachment before judgment becomes an attachment in execution after the suit has been decreed.

5. This view was followed in Kuppuswami by guardian and mother Subbakal s. Rangai Goundan (2). The learned Judge dealing with the case observed —

"O. 38, R.11, in effect equates an attachment before judgment made in execution of a decree and it should, therefore, follow that under O. 2

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