The revival of attachment before judgment after the restoration of the suit and the availability of the attachment to the decree-holder who obtained a decree after the restoration of the suit.

Kuppuswami Ayyar, J.

1. The only question for consideration in these two appeals is whether the attachment before judgment effected in a suit can be availed of by a plaintiff decree-holder whose suit was originally dismissed by the trial Court but was decreed subsequently allowing a review petition filed by him.

2. The appellants in both these appeals are purchasers from the judgment-debtor in O.S. No. 37 of 1931 on the file of the Subordinate Judges Court, Tenali. That was a suit on a promissory note executed by a lady. The properties in dispute in both these appeals were attached before judgment at the instance of the plaintiff. The suit was dismissed on the ground that the thumb impression in the document was not that of the defendant. The parties proceeded under the impression that the impression was that of the left thumb, but it was subsequently discovered that the impression was that of the right thumb; a review application was filed and the review was allowed. After the review was allowed, evidence was led to show that the impression was that of the right thumb and a decree was passed. These two appellants have purchased subsequent to the passing of the decree after review the properties that were attached and their claim petitions filed in the proceedings to execute the decree passed after review were dismissed. They filed suits to set aside those summary orders and it is out of these suits these appeals arise. Their contention was that the attachment had terminated when the suit was dismissed and was not revived by the subsequent allowing of the review and cannot therefore be availed of in execution of the decree passed after the review was allowed. Both the Courts found against the appellants. Hence this second appeal.

3. In Balaraju Ckettiar v. Masilamony Pillai (1929) 58 M.L.J. 675 : I.L.R. Mad. 334 the question had to be considered with reference to a decree obtained on appeal reversing the decree of the first Court dismissing the suit. It was held that it was not necessary that an express order terminating the attachment should be passed and that the attachment automatically ceased on the termination of the suit and therefore cannot be availed of by the decree-holder in execution of the decree passed on appeal. At pages 350 and 351 stress is laid on the fact that the decree passed in the suit was a decree passed not by the trial Court but by the appellate Court and that the attachment was effected only for the benefit of the decree that might be passed by the trial Court. The same question had to be considered by a Full Bench of this Court in Veerasami v. Ramanna (1934) 68 M.L.J. 444 : I.L.R. Mad. 721 but in that case the original decree was vacated by the dismissal of the suit for default. The dismissal order was subsequently set aside and it was held that on the restoration of the suit all the ancillary orders got revived and the attachment was available to the decree-holder who obtained a decree after the restoration of the suit. It was urged for the appellant in this case that on the dismissal of the suit before the review petition was allowed, the attachment had been terminated, and it cannot be said that the allowing of the review amounted to a restoration of the proceedings in the suit so as to enable the plaintiff who subsequently obtained a decree to have the benefit of the ancillary order which had become inoperative by the dismissal of the suit. If the principle in that case is to be applied to the facts of this case, it can be applied only if by the allowing of the review the suit is to be considered to have been restored, and the decree already passed to have been set aside. If the decree dismissing the suit automatically puts an end to the attachment by reason of the dismissal of the suit, then the attachment in the case of dismissal of a suit for default also must have that effect. When it is made available for the plaintiff who subsequently obtains a decree after the restoration of the suit,