An order of attachment before judgment terminates with the dismissal of the suit, even though there is no order by the court withdrawing the attachment.

JUDGMENT :- This appeal has been filed by the decree-holder against the order of the District Judge of Bareilly dismissing his application for Execution of decree by arrest of the surety.

2. The facts, in brief, are that the appellants filed a suit in October 1947 and obtained an order of attachment before Judgment in respect of the property of the Judgment-Debtor. By an order dated 18th October 1947 the Munsif appointed the respondent Ramesh Kishore Kodesia as Superdar of the attached property. In the security bond executed by the respondent, he made himself liable for any loss of the property entrusted to his care during the pendency of the suit in the court of the City Munsif, Bareilly. It appears that at first the suit was dismissed for default of the plaintiff on 9-8-1948. On an application for restoration being made by the Decree-holder, the suit was restored on 4-12-1948. The defendant went up in appeal and the case remanded for disposal on the merits. The decree-holder then moved an application for execution of the decree by arrest of the surety.

3. The main objection raised against the execution proceedings was that the order of attachment before judgment came to an end with the dismissal of the suit and that the respondent being a Supurdar of the property attached, his liability also ceased with it.

4. On behalf of the decree-holder it was contended that the restoration of the suit had the effect of reviving all ad interim and ancillary orders passed earlier in the suit.

5. The learned District Judge held that under Order 38, rule 9 of the C.P.C. the proceedings relating to the attachment come to an end with the dismissal of the suit and that it was immaterial that the Court had not made an order withdrawing the attachment.

6. The crucial point for consideration is whether an order of attachment before judgment terminates with the dismissal of the suit even though there is no order by the Court withdrawing the attachment and that the subsequent restoration of the suit has not the effect of reviving the attachment.

7. Order 38, Rule 9 declares that,

"Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn............................................. when the suit is dismissed."

A plain reading of Rule 9 goes to indicate that if and when the suit is dismissed the court is under an obligation to make an order withdrawing the attachment. In other words, the order of attachment before judgment made by the court would fall with the dismissal of the suit. It the court either inadvertently or through carelessness omits to pass an order withdrawing the attachment and thereby fails to perform a duty imposed upon it, could it be said that the attachment shall subsist even though there is no suit in existence ? No discretion is allowed to the court to permit the attachment to continue even after the dismissal of the suit. It therefore follows that the mandatory provisions of Rule 9 will not be affected by reason of the court having failed to comply with the provisions of law.

8. In Ram Chand v. Pitam Mal, I.L.R. 10 All. 506 this court had to consider the identical question whether the order of attachment before judgment would continue to subsist despite the dismissal of the suit. Section 485 of the Code of Civil Procedure then in force was, in material particulars, similarly worded as Rule 9 of Order 38. Their Lordships were called upon to consider whether the dismissal of the suit would have the effect of terminating the order of attachment before judgment. Justice Mahmood, delivering the judgment of the court observed as follows :-

"It could scarcely be contended that during the interval between the dismissal of the suit on the 30th March 1835 and the filing of the appeal to this Court which resulted in the decretal of the claim on the 2nd February 1886 there was any litigation pending in any Court; and if I were to hold that the attachment of the 11th January, 1885, subsiste