JUDGMENT D.P. Uniyal, J.
1. 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 I8th 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 9-8-1943. 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9 declares that, "Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn.....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 488 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 1885 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, 1S85, subsisted during that interval, I should be laying down the untenable rule that an ad interim order survives the pendency of the main litigation itself; and indeed if I were to hold this, should be driven to the logical conclusion that such interim order of attachment subsists for ever whether there is or is not an appeal, unless and until such order is expressly withdrawn. I hold, therefore, that inasmuch as the suit in which the attachment of the 11th January, 1885 was made terminated in dismissal on the 30th March 1885, that attachment ceased to be operative after that date, and that since no further proceedings are alleged to have been taken to attach the property in execution of the High Court's decree of the 2nd February 1888, there was no valid attachment subsisting on the 1st February 1887, when the judgment-debtor's properties were sold by auction."
9. So far as Allahabad High Court is concerned, the opinion expressed in the case of ILR 10 All 506 (supra) has held the field and there has been no dissenting voice as to the correctness of the above view.
10. The learned counsel invited my attention to a number of cases of the Madras High Court where the contrary view was expressed. In Veera-swami v. Ramanna A. I. R. 1935 Mad. 365 (F. B.) there was an attachment before judgment during the pendency of the suit which was dismissed for default. The dismissal order was subsequently set aside and it was held that on the restoration of the suit the ancillary orders got revived and the attachment was available to the decree-holder who obtained the decree after the restoration of the suit.
11. In Balaraju Chettiar v. Masilamani Pillai, AIR 1930 Mad 514 (FB) a contrary view was expressed and it was held that it was not necessary that an express order terminating the attachment should be passed and that the attachment automatically ceased on the termination of the suit and therefore could not be availed of by the decree-holder in execution of the decree passed on appeal.
12. A distinction appears to have been made by the Full Bench of the Madras High Court between a dismissal of a suit for default and dismissal on merits. The Full Bench of the Madras High Court distinguished the case of A. I. R. 1930 Mad. 514 (F B) on the ground that there the dismissal of suit was on merits and the reversal of the decree on appeal operated to revive the attachment of the property. Their Lordships were of the view that different consideration arose where the suit was dismissed for default and was later restored to the file and eventually decreed by the trial court. The ratio of the decision was stated in the judgment of Beasley, Chief Justice in these words:
"The common sense view of the matter is that all ancillary orders should be restored on the suit's restoration without any further orders".
13. There does not seem to be any reasonable basis for making a distinction between the dismissal of suit for default and a dismissal of suit on merits. If the plaintiff succeeds in getting the suit restored in one case and the dismissal of suit is set aside on appeal in the other, all that happens is that the suit becomes alive. It cannot be disputed that once a suit is dismissed either for default or on merits, it ceases to exist in the eye of law and therefore, any ancillary orders passed in the suit would automatically come to an end and cease to operate.
14. In the present case the plaintiff-decree holder sought to enforce the order of the attachment before judgment by arrest of the surety. If the attachment before judgment ceased after the dismissal of the suit, the surety bond also became inoperative and could not be available to the decree-holder without a fresh application. I am clearly of opinion that the supardar could not be held liable on the security bond executed by him after the attachment proceedings had become ineffective by reason of the dismissal of the suit.
15. I, therefore, see no force in the appeal and it is accordingly dismissed with costs.