JUDGMENT

Henry Richards, C.J. - This appeal arises out of a suit in which the plaintiffs sought a declaration that they were entitled to Rs. 627-9-6 out of a sum which had been deposited in court. The facts are as follows : Ambika Prasad brought a suit against Mahbub and others. Before Judgment he attached property which belonged to Mahbub, under the provisions of order XXXVIII of the Code of Civil Procedure. The property being of a perishable nature it was sold and the proceeds were lodged in court on the 29th of March, 1911. It is out of this sum that the plaintiffs seek to be paid the amount of a decree. The plaintiffs obtained their decree on the 12th of September, 1911. They made an application for execution by "attachment" of the money in court on the 10th of January, 1912. The court made an order on the 21st of February, 1912, in which it is stated that the property having been attached the money should be paid to the decree-holders upon application. An application for payment was made on the 23rd of February, 1912. On the 26th of February, 1912, Ambika made an objection to the money being paid to the decree-holders on the ground that he had attached it before judgment. The court on this objection refused to allow the money to be paid out to the decree-holders, who are the plaintiffs in the present case. Ambika got his decree on the 10th of" April, 1912. It seems to me that we have to consider what were the rights of the decree-holders on the 23rd of February, 1912, that is to say, were they entitled by law to have their decree satisfied out of the money deposited in court? If they were, they are entitled to a decree in the present suit, provided that their remedy lay by suit. Order XXXVIII, Rule 5, provides for attachment before judgment. Property can only be attached before Judgment upon the court being satisfied that the defendant, with intent to obstruct; or delay the execution of any decree that may be given against him, is about to dispose of the whole or any part of his property, or that he is about to remove the whole or part of his property from the local limits of the jurisdiction of the court. It seems to me absolutely clear that as it is only to prevent one or other or both of these things that attachment before Judgment is allowed. Such attachment confers no right in the property on the plaintiff who obtains the order. Everything remains as before the attachment, save that it has been taken out of the power of the defendant to dispose of the property attached or remove it out of the jurisdiction. If there was the least doubt about the matter, it is set at rest by the provisions of Order XXXVIII; Rule 10, which is as follows : "Attachment before Judgment shall not affect the rights existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree." Supposing, therefore, that the property had not been of a perishable nature, but had been simply attached before judgment, the plaintiffs would have been entitled to have attached the property, have it sold and obtain payment under their decree. Ambika would have had no right of any sort to object to the decree of the plaintiffs being discharged. Some attempt has been made to contend that the fact that the property had been turned into money altered the circumstances. I think that this is a most unreasonable contention. In my opinion the money, which represented the property which had been attached before judgment is to be treated in exactly the same way as the property would have been, with this difference only that of course there is no sale. Under these circumstances it seems to me that the plaintiffs were clearly entitled on the 23rd of February, 1912, to have had their decree satisfied out of the money deposited in court.

2. It is next argued that the dispute between the plaintiffs and Ambika had to be decided by