An attachment before judgment effected with out complying with the directions of Order 38 Rule 5 was not void and ineffective as being beyond the jurisdiction of the Court making it, but it would be voidable as a mere irregularity in the exercise of the Court's jurisdiction which could be challenged by the person affected by it and by no one else.

( 1 ) THIS appeal involves the only question whether in a suit the attachment before judgment effected, which terminates on the dismissal of the suit by the trial Court, is automatically revived by the fact that the appellate Court, reversing the dismissal of the suit, passes a decree in favour of the plaintiffs.

( 2 ) THE appellants in their money suit against the respondent secured an attachment before judgment from the trial Court, Ultimately, the suit was dismissed. Upon an appeal, the first appellate Court decreed the plaintiffs' claim by reversing the judgment of the trial Court. Thereafter, the appellants took steps to get a proclamation of sale issued without securing a fresh order of attachment from the executing Court. The respondent-judgment-debtor raised an objection that the property could not be sold without and fresh order of attachment. The executing Court, as also the first appellate Court, held that an appeal being a continuation of the suit, the appellate decree revived'the attachment before, judgment effected in the suit. The learned Single judge reversed that view of the courts below and upheld the judgment-debtors's objections. The answer to this question depends on the interpretation of the phrase when the suit is dismissed' occurring in Order 38, Rule 9. Civil Procedure Code. ( 3 ) THERE is a conflict of views on this question. I propose to discuss the question in all its aspects in view of the conflict Order 38 Rule 9, Civil Procedure Code is as under:-

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

It is the last phrase which needs to be interpreted in the present case.

( 4 ) IT would be relevant to consider the provisions of Order 38 Rule 5, Civil procedure Code for the purpose of a proper understanding of the provisions of order 38 Rule 9, Civil Procedure Code. The said rule is as follows:-" (1) Where, at any stage of a suit, the Court is satisfied by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, - (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. " further on Rule 6 of Order 38 provides that where the defendant fails to show cause why he should not furnish the security required, within the time fixed by the court, the Court may order that the property may be attached for the satisfaction of any decree which may be passed in the suit. Where the defendant shows such cause or furnishes the required security, the Court is required to withdraw the attachment or pass such further order as it may deem fit. As regards the manner of attachment, Rule 7 provides that the same procedure shall be followed as is applicable to an execution of a decree. Rate 8 provides for investigation of objections or claims in respect of the property attached. Further on Rule 10 provides that the rights of other decree-holders to proceed to sell the property of the judgment-debtor which has been attached shall not be affected by such attachment before j