TRIVEDI, J. (for himself and on behalf of Singh, J.) :- This plaintiff's second Civil Appeal has been referred to the Full Bench on account of the importance of a question of law involved in the case. The question involved is whether on the dismissal of a suit in default the attachment before judgment automatically lapsed and a fresh attachment was necessary on the restoration of the suit, or whether on the restoration of the suit the attachment previously made is revived or is survived.

2. Smt. Muradan and her husband Nasib Ullah had purchased a house on 16-1-47. The plaintiff-appellant had filed a suit for recovery of certain sum of money against Nasib Ullah in the year 1951 and on an application made got the half share of Nasib Ullah in the house attached before judgment on 11-11-51. The suit was thereafter dismissed for default but was subsequently restored and ultimately decreed. In execution of the decree the half share of Nasib Ullah was sold and purchased by the plaintiff-appellant. The sale was confirmed on 28-10-59. The appellant claimed to have taken possession on 6-5-60.

3. The contesting defendant-respondent Karim Bux claimed to have acquired Nasib Ullah's share in the house under a sale deed dated 4-8-53. This sale deed was executed after the restoration of the suit. The defendant Karim Bux's contention was that on the dismissal of the suit in default the attachment before judgment lapsed and since no fresh attachment was made the sale affected by Nasib Ullah on 4-8-53 remained unaffected and Nasib Ullah thereafter was not left with any subsisting title to or interest in the house which could have been sold in execution of the decree passed in appellant's favour. The contention of the respondent was repelled by the trial Court but upheld by the lower appellate Court hence this second Civil Appeal.

4. Order 38, R. 6 of the Civil Procedure Code authorises a Court to attach before judgment the property of the defendant in case the Court is satisfied that the defendant in order to delay or defeat the execution of a decree that may be passed against him is about to remove or dispose of his property and has failed to furnish the required security. Order 38, Rule 9 is the subject-matter of interpretation which is in these words :-

"Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed."

5. The contention of the plaintiff-appellant is that Order 38, Rule 9 contemplates a specific order of withdrawal of attachment and so long that specific order of Withdrawal of attachment is not passed the attachment continued and the transfer in favour of defendant-respondent No. 1 was of no effect. It is admitted that in the instant case there was no specific order of removal of attachment. Reliance has been placed by the learned counsel for the appellant on Thampi Muhammad Abdulkhadir v. Padmanabha Pillai Parameshwaran Pillai, AIR 1952 Tav-Co 414 (FB) wherein it has been laid down that :

"An attachment before judgment which ceased to be in force with the dismissal of the suit will revive when the decree dismissing the suit is subsequently reversed and a decree in the plaintiff's favour is passed, even by the same court or by a superior Court and this revival will be in force from the date on which the attachment before judgment is effected as provided for in the Civil Procedure Code."

6. Reliance has also been placed by him on Namagiri Ammal v. Muthu Velappa Goundan, AIR 1928 Mad 940, but that case has been overruled in Balaraju Chettiar v. Masilamani Pillai, AIR 1930 Mad 514 (FB) and it was held that on a dismissal of a suit an attachment before judgment necessarily ceases under Order 38, Rule 9 even though the Court does not pass an order withdrawing it. The observations of their Lordships of the Travancore-Cochin go to show that an order of