JUDGMENT

1. This is a plaintiff's appeal arising out of a suit for sale on the basis of a mortgage deed dated the 8th of January 1909.

2. It appears that Basant Lal, respondent brought a suit for recovery of a money debt against Khwaju and others, and while that Suit was pending he applied for attachment of the defendants' house before judgment. It is not disputed that the house was so attached. While the suit was pending and this attachment was in force, the defendants mortgaged it on the 8th of January 1909 in favour of Bhore Akhey Ram the present appellant. On the 5th March 1909 Basant Lal's suit was ultimately decreed. He put in an application for execution on the 14th of April 1909 which, however was dismissed on the 22nd July 1909 on the ground that the decree-holder had not deposited the process fee necessary for the issue of the proclamation of sale. A second application for execution was made on the 19th July 1909 which also was dismissed on the 23rd December 1909 on apparently not very clear grounds. In pursuance of a third application for execution a share of the house was put up for sale and purchased at auction by Basant Lal, the decree-holder, on the 1st June 1910.

3. The Courts below have dismissed the plaintiff's claim on the ground that his mortgage deed was executed while the attachment of Basant Lal was subsisting and that, therefore it is absolutely void as against the latter.

4. On behalf of the plaintiff it is contended that as soon as the first application for execution was dismissed for the default of the decree-holder on the 12th July 1909, the previous attachment ceased to exist. In support of this contention it is urged that Order XXI, Rule 57 Civil Procedure Cdoe applies not only to attachment in execution of the decree but also to attachment before judgment, and that under that rule, upon the dismissal of an application for execution, the attachment ceased ipso facto.

5. It is to be noted that prior to the coming in force of the new Act there used to be some doubt as to the continuance of an attachment when the execution cases were struck off or removed from the file. In order to put an end to such doubts Rule 57 has been added in Order XXI. As the rule stands it professedly applies to a case where a property has been attached in execution of a decree. Unless, therefore, there is some other provision in the Code which makes this rule applicable to attachments before judgment this new rule would not be applicable to such attachments. It is, therefore, contended on behalf of the plaintiff that by virtue of the provisions contained in Rule 7 of Order XXXVIII the above-mentioned rule is applicable to attachments before judgment also. This contention we are not prepared to accept. Under Order XXXVIII, Rule 7 the attachment before judgment is to be made in the manner provided for the attachment of property in execution of a decree. That rule clearly refers to the mode of the attachment and not to the way in which that attachment ceases. It is Order XXXVIII which provides as to how and when the attachment before judgment is to cease. Under that rule if a suit is dismissed or if the defendant furnishes the required security the court is to withdraw the attachment. We are, therefore, of opinion that it is not possible to extend the provisions of Order XXI Rule 57 to cases of attachment before judgment.

6. The attachment before judgment would have been subsisting, even though no application for. execution had been made up to the date when the mortgage was effected. The attachment was clearly to enure for the benefit of the plaintiff decree-holder till his remedy became absolutely barred. Under the circumstances we see no good ground for holding that the attachment which had been subsisting prior to the application necessarily came to an end when that application was dismissed.

7. There are several cases in support of the view which we have taken. We may refer to the cases of Ganesh Chandra Adak v. Banwari Lal Roy 1