IMPORTANT POINT
Subsequent order after an appeal, remittal of the said appeal back to the Trial Court and the judgment decreeing the suit and making the interim order absolute is contrary to the provisions of Order 38 Rule 9 inasmuch as, the order of attachment before judgment ceased to operate by the dismissal of the suit at first instance.

A.S. Pachhapure, J.—The facts in brief relevant for the purpose of this petition are as under:

2. The parties will be referred as per their rank before the Executing Court.

The respondent 1 herein is the decree-holder whereas respondents 2(a) to 2(e) are the judgment-debtors and the petitioner herein is a Garnishee. The decree-holder initially instituted OS No.4 of 1971 against the judgment-debtor seeking recovery of an amount of Rs. 30,438.17 with interest at 12% p.a. The said suit came to be transferred to the Additional Civil Judge (Junior Division), Davanagere and was renumbered as OS No.24 of 1971. In OS No. 24 of 1971, the Court passed an order of attachment of Rs. 40,000 from the account of the judgment-debtor maintained by the petitioner-Bank. A telegram dated 15.5.1971 was sent to the Bank indicating the attachment. The suit bearing OS No. 24 of 1971 was again transferred to the Court of Civil Judge (Junior Division) and was renumbered as OS No.32 of 1975. Thereafter, on 30.1.1979, the suit was dismissed on merits and an appeal was preferred against the dismissal of the suit and the said appeal came to be allowed and the matter was remanded back to the Trial Court. In the circumstances, again the suit was renumbered as OS No.457 of 1997 and under the judgment and decree recovery of the money claimed, was granted and the order of attachment made earlier was made absolute.

Thereafter, the decree-holder filed Execution Case No.105 of 1998 for the recovery of the decreetal amount as per the decree dated 22.6.1998 in OS No.457 of 1997 and in the circumstances, the decree-holder sought for an order to transfer the amount of Rs.40,000 from the petitioner-Bank to the Court for payment. Thereafter, a show-cause notice was issued to the Bank for not complying the order dated 9.4.2003. The petitioner-Bank filed CRP No.1854 of 2003 against the order dated 29.5.2003 in the execution case and the attachment order dated 9.4.2003, was conditionally stayed by this Court in CRP No.1854 of 2003 on deposit of Rs.40,000. The revision petition was disposed of by setting aside the order of the Executing Court and remitting the matter to the Executing Court with a liberty to the petitioner-Bank to putforth its say before the Executing Court. It is under these circumstances that the petitioner-Bank filed its objections raising different contentions and stating that an order to call for the amount of Rs. 40,000 cannot be granted. The Executing Court heard the Counsel for the parties and on appreciation of the material on record has passed the impugned order directing the petitioner-Bank to deposit Rs.40,000 within 15 days from the date of the order. Aggrieved by the same, the present writ petition has been filed.

3. I have heard the learned Counsel for the petitioner and also the respondent. The point that arise for any consideration is:

“1. Whether the order directing the petitioner to deposit Rs.40,000 in pursuance of the attachment order in O.S. No. 24 of 1971 is legal and valid?

2. Whether the petitioner has made out any grounds to call for any interference?”

4. It is not in dispute that after an order of attachment of Rs. 40,000 in OS No. 24 of 1971 a telegram was sent by the Executing Court to the Bank on 15.5.1971. It is necessary to refer to the provisions of Order 38, Rule 9 of the Civil Procedure Code, 1908 which is extracted hereunder:

“9. Removal of attachment when security furnished or suit dismissed—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.”

(emphasis supplied)

So as could be seen from this provision, an order of attachment made by a Court ceases to operate, in case, if the suit is dismissed. Admittedly, the suit which was instituted in OS No.24 of 1971 and later transferred and renumbered as OS No.32 of 1975 came to