Right of purchaser of attached property in the mean while.

Horwill, J.-The respondent obtained a simple money decree. In execution against the property with which we are here concerned, the property was attached but the petition was subsequently dismissed for default on the ground that the sale papers and the encumbrance certificate had not been filed. Eventually, however on 28th January, 1943, the decision of the executing Court was reversed, with the result that the execution proceeded. In the meanwhile,however, on 10th May 1941, the appellant purchased the property that had been attached for Rs. 4,500, Two questions arise in this appeal (1) whether, upon the allowing of the appeal, the consequential order raising the attachment was automatically set aside; and (2) whether, even if it did so, it would affect the transaction that had been entered into at a time when in fact no attachment was subsisting. Both these points were decided against the appellant by the learned Judge (Panchapakesa Aiyar, J.) in second appeal; but as he has granted a certificate, these two questions have been reagitated in this Letters Patent Appeal.

Our attention has not been drawn to any decisions directly on the point here raised; but arguments have proceeded on the analogy of attachments raised in proceedings under Order 21, rule 63 and Order 38, rule 9 of the Civil Procedure Code. It is conceded that in the former class of cases, the decreeing of a claim suit would have the effect of automatically restoring the original attachment and would render void any alienations made in the interim; but that class of cases is sought to be distinguished on the ground that the question as to the propriety of the attachment is directly in question in a claim application, as well as in a claim suit, and that the claim suit being in the nature of an appeal from the claim order it would restore the original attachment if decreed.

There is a considerable body of decisions to the effect that in cases of attachment before judgment, where the suit is dismissed and the attachment raised because of the mandatory provisions of Order 38, rule 9 of the Civil Procedure Code the attachment is not automatically re-imposed if, on appeal, the suit is decreed the reason being, according to one of the decisions referred to, that the attachment is for the purpose of protecting the interests of the plaintiff during the pendency of the suit and not during the pendency of any proceeding that may arise out of the suit. In most of the cases cited by the learned advocate for the appellant the difference in the wording of Order 21, rule 63 and Order 38, rule 9, Civil Procedure Code, is stressed, and it is pointed out that whereas under Order 21, rule 63, the order in the claim petition is specifically made subject to the result of the suit, there is nothing in the wording of Order 38, rule 9, which suggests that the attachment would be automatically re-imposed in the event of the plaintiff’s success in appeal. One would have thought that this question would not have depended on the wording of Order 38, rule 9 alone but rather on broader principles as to the effect of appellate orders. The decisions to the effect that a reversing appellate order would not have the effect of automatically re-imposing an attachment are mostly decisions of the Calcutta High Court, based ultimately on Sasirama Kumari v. Meharban Khan1, where one finds that the learned Judges, came to the conclusion they did, not upon an analysis of Indian and English cases, but on American decisions. The decision in Pindi v. U Thaw Ma2, follows the Calcutta decisions, the learned Chief Justice there having been a party to one of the Calcutta decisions. It is however unnecessary to say anything more with regard to these decisions; because a Full Bench of this Court in Balaraju Chettiar v. Masilamani Pillai3, has come to a similar conclusion. Pakenham Walsh, J., in his judgment, with which the other learned Judges concurred, came to the conclusion he did primarily because of the