K. SREEDHAR RAO, J. ( 1 ) THE appeal arises out of the order passed in Misc. 89/87 filed in Ex. Case No. 51/86. The execution proceedings are pursuant to the decree passed in O. S. No. 65/88 of the file of the Civil Judge, mandya. ( 2 ) IT has been a torturous litigation for the parties and in particular to the appellants who are litigating as LRs. of the original plaintiff one Linga Bhatta. It appears that the original plaintiff has bountifully left a legacy of perennial litigation for his third generation. Be it as it may, this appeal poses an interesting question of law about the validity and effect of attachment of property in execution of a decree with reference to the provisions contained in Order 38, Rule 11 and Order 21, Rule 57, CPC. ( 3 ) THE original plaintiff successfully obtained a decree for recovery of money against the husband of the second respondent in a sum of Rs. 80,000/- and odd with costs and interest. The suit was decreed on 16-1 -1970, followed by an execution in Ex. Case No. 41 / 70 by the original plaintiff; successfully a sum of Rs. 75,000/- came to be recovered by sale of two properties. The execution petition was closed on 1-4-1972. However, the second respondent preferred an appeal against the judgment and decree in RFA 95/ 71. The appeal was dismissed on 26-2-1974. The legal representatives of the decree holder filed another execution case in Ex. No. 998/ 74 for recovery of the balance amount. The said application came to be disposed of on 30-5-1974 without any effective recovery of any part of the balance due. Again another execution petition was filed in Ex. No. 115/ 74 on 11-6-1974 which came to be dismissed for default on 9-2-1979. In the said proceedings also no amount was recovered. Thereafter the present execution case is filed on 24-2-1986. The first respondent filed an application under Order 21, Rule 58 challenging the attachment on the ground that the property belongs to him and cannot be subjected to execution for recovery of the monies due under the decree. ( 4 ) IT may be relevant to note that the appellant also claimed that he purchased the property in question in a court auction in Execution case Ex. 125/79 on 9-4-1979. ( 4 ) IT may be relevant to note that the appellant also claimed that he purchased the property in question in a court auction in Execution case Ex. 125/79 on 9-4-1979. However the records reveal that the execution cases referred by the appellant does not pertain to the execution of the decree in question and it pertains to some L. A. C. proceedings. Therefore the Counsel for the appellant fairly concedes that the claim of title by parties under court auction dated 9-4-1979 is not pressed into service. By gross mistake, the appellant was misled to believe that the property is purchased in his name in Ex. No. 125/79. The later enquiries reveal that there was no valid purchase made by the appellant in the court auction. ( 5 ) A contention is raised in the Misc. proceedings by the appellant that during the pendency of suit in O. S. 65/68 an order of attachment before judgment was obtained under Order 35, Rule 5 and by virtue of the provisions contained in Order 38, Rule 11, the attachment effected before judgment continues until the decree is fully satisfied or otherwise becomes inexecutable. It was further contended that the provisions of order 21, Rule 57 does not apply to the attachment made before judgment under Order 38, Rule 5, CPC. In that view submitted that the dismissal of the earlier execution petitions does not take away the effect of attachment before judgment obtained in the suit and the attachment continues notwithstanding dismissal of the execution petitions since the attachment obtained before judgment stands on a different footing in view of the provisions contained in Order 21. Rule 57, CPC. ( 6 ) FOR convenient reference the original and amended provisions of Order 21, Rule 57 are reproduced under :old after 1976 amendment 57. Determination of attachment : 57. Determination of where any prop- attachment : Where any erty has been at- property has been at- tached in execu- tached in execution of tion of a decree, a decree and the Court. Determination of attachment : 57. Determination of where any prop- attachment : Where any erty has been at- property has been at- tached in execu- tached in execution of tion of a decree, a decree and the Court. but by reason of for any reason, passes the decree holders an order dismissing the default the court is application for the ex- unable to proceed ecution of the decree further with the the Court shall direct application for ex- whether the attach- ecution, it shall ei- ment shall continue or ther dismiss the cease and shall also in- application or for dicate the period upto any sufficient rea- which such attachment son adjourn the shall continue or the proceedings to a date on which such at- further date. Upon tachment shall cease. the dismissal of (2) If the Court omits such application to give such direction, the attachment the attachment shall be shall cease. deemed to have ceased. ( 7 ) THE Counsel for the appellant relied on the ruling of the Rajasthan High Court in Kishore Singh v. Udhyog Mandir, AIR 1976 Raj 7 . In paras 20 and 21 it is held thus at page 10 :"20. From the reading of the above decisions it is abundantly clear that all the high Courts except Madras and Andhra pradesh are of the view that Order 21, Rule 57, CPC does not apply to the attachment before judgment. As noticed earlier the two judges out of the five have given dissenting Judgments in Meyappa Chettiars case air 1924 Mad 494 (FB) and their view has been accepted by various other High courts. 21. From the plain readingof Order 21, rule 57, CPC, it is difficult to accept the contention of Mr. Kasliwal that attachment before judgement becomes an attachment in execution after the decree has been passed, within the meaning of Order 21, rule 57. I am therefore inclined to hold that Order 21, Rule 57, CPC does not apply to an attachment before Judgment. It is also for the reason that the attachment is effected much prior to the existence of the decree and it cannot therefore be equated to an attachment in execution. With all respects. I am unable to agree with the majority view of the Madras High Court, in Meyappa Chettiars case. It is also for the reason that the attachment is effected much prior to the existence of the decree and it cannot therefore be equated to an attachment in execution. With all respects. I am unable to agree with the majority view of the Madras High Court, in Meyappa Chettiars case. I accordingly hold that where attachment before judgment is made by he plaintiff and his suit is decreed, Order 38, Rule 11, CPC applies and such attachment ensures for all successive execution applications. It survives and is available to the decree-holder, if submitted within limitation until the decree is satisfied or discharged. " ( 8 ) THE Counsel while interpreting the key words in Rule 57 "in execution of a decree" contended that a strict rule of interpretation is to be adopted. The provisions of Rule 57 would apply to only the cases where the attachment is effected in a execution proceedings and the rule has no application to attachment before judgment under Order 38, Rule 11. In that regard relied on the ruling of the Supreme Court in Sardar govindarao Mahadik v. Devi Sahai, AIR 1982 sc 989 . In para 58, the following observations are made at page 1006 : "58. What is the effect of attachment before judgment? Attachment before judgment is levied where the Court on an application of the plaintiff is satisfied 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 the remove the whole or any part of his property from the local limits of the jurisdiction of the Court. The sole object behind the order levying attachment before judgment is to give an assurance to the plaintiff that his decree if made would be satisfied. It is a sort of a guarantee against decree becoming infructuous for want of property available for which the plaintiff can satisfy the decree. The provision in S. 64 of the CPC provides that where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment. The provision in S. 64 of the CPC provides that where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment. What is claimed enforceable is the claim for which the decree is made. Motilals suit was for a money claim. It finally ended in a decree for Rs. 500/- by high Court and in between the last appellate Court had dismissed Motilals suit in entirety. There is nothing to show that the attachment which would come to an end on the suit being dismissed would get revived if a second appeal is filed which ultimately succeeds. In act, a dismissal of the suit may terminate the attachment and the same would not be revived even if the suit is restored and this becomes manifestly clear from the newly added provision in sub-rule (2) of R. 11-A of O. 38, CPC which provides that attachment before judgment in a suit which is dismissed for default shall not be revived merely because by reason of the fact that the order for the dismissal of the suit for default has been set aside and the suit has been restored. As a corollary it would appear that if attachment before Judgment is obtained in a suit which ends in judgment is obtained in a suit which ends in a decree but if in appeal the decree is set aside the attachment of necessity must fall. There should be no difficulty in reaching this conclusion. " ( 9 ) PER contra, the Counsel for the respondent submitted that the attachment effected before judgment merges with the final order and only for the purpose of technical convenience, it is laid down in Rule 11 of Order 38 that no fresh attachment is necessary since the attachment effected before judgment continues to operate till its logical end. Where as the provisions of Rule 57 of Order 21 do not apply to the cases of attachment before judgment without any discrimination. On this proposition, the Counsel relied on the ruling of this Court in byrappa (Deed.) by LRs. Smt. Muni sanjeevamma v. S. Mani, AIR 1970 Mysore 152. Where as the provisions of Rule 57 of Order 21 do not apply to the cases of attachment before judgment without any discrimination. On this proposition, the Counsel relied on the ruling of this Court in byrappa (Deed.) by LRs. Smt. Muni sanjeevamma v. S. Mani, AIR 1970 Mysore 152. In paras 8, 9, 10 and 11 the following observations are made at pages 153-154 : "8. The words "where any property has been attached in execution of a decree" have been understood differently by different courts, some courts taking the view that those words speak of an attachment made in execution proceedings, while the others take the contrary view that they also refer to an attachment before judgment which becomes an attachment in execution when a decree- is made in the suit in which the attachment before judgment was made. The high Courts of Bombay, Nagpur and Andhra pradesh take the former view, while the High courts of Bombay, Calcutta, Kerala and of the former State of Mysore take the second although Bombay and Kerala High Courts had taken a different view on an earlier occasion but changed it subsequently. 9. It appears to me that it is proper and reasonable to say that Rule 57 of Order 21. which causes the disappearance of an attachment when an execution application is dismissed for the default of the decree-holder governs not only an attachment made in an execution proceedings but also an attachment before judgment which becomes an attachment in execution when a decree is made in the suit in which the attachment before judgment is made. That is the proper way of understanding Rule 57 of Order 21 is clear from the Rule 21 is clear from the rule 11 of Order 38 of the Code of Civil Procedure which says that when the plaintiff obtains in attachment before judgment in his suit and there is a decree in his favour it shall not be necessary for him to apply for an attachment of that property again in order to enable him to execute the decree against it. The clear meaning of this provision is that an attachment before judgment becomes an attachment in execution when a decree is made in the suit. The clear meaning of this provision is that an attachment before judgment becomes an attachment in execution when a decree is made in the suit. So, the word "where a property has been attached in execution of a decree" occurring in Rule 57 of order 21 have to be understood as referring to an attachment in enforcement of which the decree could be executed, and in the case of an attachment before judgment it is that attachment which assumes the character of an attachment in execution of a decree and so becomes capable of enforcement in an execution proceedings. ( 10 ) THERE can be very small reason of thinking that an attachment before judgment does not cease to subsist when an execution application is dismissed for decree- holders default although an attachment which is made in an execution proceeding so ceases to subsist on such default. There can be no rational distinction between an attachment before judgment which becomes an attachment in execution and an attachment made in an execution proceeding for the purpose of the application of Rule 57 of order 21, and I should not be justified in understanding the words "where any property has been attached in execution of a decree" with which Rule 57 of Order 21 opens too literally. It could not have been the intention of that rule that an attachment made in an execution proceeding alone should all to the ground when the decreeholder commits a default, but that notwith standing such default an antecedent attachment before judgment should continue to subsist. ( 11 ) I am therefore, of the opinion that whether it is an attachment before judgment which becomes an attachment in execution or whether it is an attachment made in the execution proceedings, that attachment ceases to subsist when an execution application is dismissed for the decree-holders default. That, I think, is how I should understand Rule 57 of Order 21 of the Code of civil Procedure. 10. The Counsel also relied on the ruling of the Supreme Court in Indira Devi Arya v. Bajrang Lal Khaitan, 2001 AIR SCW 4665. In paras 2 and 3 the following observations are made at page 4666 : "2. That, I think, is how I should understand Rule 57 of Order 21 of the Code of civil Procedure. 10. The Counsel also relied on the ruling of the Supreme Court in Indira Devi Arya v. Bajrang Lal Khaitan, 2001 AIR SCW 4665. In paras 2 and 3 the following observations are made at page 4666 : "2. The short question that arises for consideration is whether on the dismissal of the execution case, the attachment order also stood vacated and would not revive on the restoration of the execution case ? Order 21, rule 57 provides that where any property has been attached in execution of a decree and the Court for any reason passes an order dismissing the execution of the decree, the Court shall direct whether the attachment shall continue or cease and shall also indicate the period up to which such attachment shall continue or the date on which such attachment shall cease. Sub-rule (2) of Rule 57 further provides that if the Court omits to give such direction, the attachment shall be deemed to have been ceased. Order 38, Rule 11-A, sub-rule (2) provides that an attachment made before judgment in a suit which is dismissed for default shall not be revived merely by reason of the fact that the order for the dismissal of the suit for default has been set aside and the suit has been restored. 3. In the present case, we find that at the time when execution case was dismissed for default, the executing Court did not pass any order extending the period of attachment. Therefore, after the restoration of the execution case, the order of attachment remained non-existent and could not have been automatically revived on the restoration of execution case. We are, therefore, of the view that in law earlier order of attachment, if not extended by the Court, stood vacated and would not revive on restoration of the execution case. " 11. Therefore, after the restoration of the execution case, the order of attachment remained non-existent and could not have been automatically revived on the restoration of execution case. We are, therefore, of the view that in law earlier order of attachment, if not extended by the Court, stood vacated and would not revive on restoration of the execution case. " 11. The Counsel relied on the Division bench ruling of this Court in Vijaya College trust v. Kumta Co-operative Arecanut Sales society, ILR 1994 Kant 1137 : (AIR 1995 kant 35) wherein the ratio of this Court reported in AIR 1970 Mysore 152 is reiterated in para 12 which reads thus : "learned Counsel for the respondents relied on AIR 1920 Madras 358, Subramania pathar v. Appur Mudaliar, wherein it has been held that the removal of an application for the execution of a decree, for statistical purpose, from the file is not a judicial termination of application, that the application was still pending and the Court should be moved to deal with it and to terminate it legally; and that no fresh application was necessary in such a case either under Article 181 or under Article 182 of the Limitation Act (9 of 1908 ). But in AIR 1970 Mysore 152, Byrappa (deceased) by l. Rs. Smt. Munisanjeevamma v. S. Amni the question whether the attachment still subsists if such a case has been dealt with. In that Ruling it has been held as follows : the words "where any property has been attached in execution of a decree" in the rule should not be interpreted too literally. They have to be understood as referring to an attachment in enforcement of which the decree could be executed and in the case of an attachment in enforcement of which the decree could be executed and in the case of an attachment before judgment it is that attachment which assumes the character of an attachment in execution of a decree arid so becomes capable of enforcement in an execution proceeding. ""the rule thus governs not only an attachment before judgment. Whether, therefore, it is an attachment before judgment which becomes an attachment in execution or whether it is an attachment made in execution proceeding that attachment ceases to subsist under the rule when an execution application is dismissed for decree-holders default. ""the rule thus governs not only an attachment before judgment. Whether, therefore, it is an attachment before judgment which becomes an attachment in execution or whether it is an attachment made in execution proceeding that attachment ceases to subsist under the rule when an execution application is dismissed for decree-holders default. "in view of this position of law, it will have to be held that the attachment ceases on the closure of the Execution Petition on 9-1-1982. Learned Counsel for the respondents submitted that any transferor-property made after issue of a certificate is void against the Co-operative Society Section 101-A of the Act provides that any private transfer or delivery of or encumbrance or charge on, property made or created after the issue of the certificate of the Registrar or any person authorised by him in this behalf under Section 101 shall be null and void as against the Co-operative Society in whose application the said certificate was issued. Section 99 lays down as to how the charge created on the property under sub-section (1) of Section 32 of the Act has to be enforced. Section 103 (3) of the Act lays down that"attachment made under this section shall not affect the rights, subsisting prior to the attachment of the property of persons not parties to the proceedings in connection with which the attachment is made, or bar any person holding a decree against the person whose property is so attached from applying for the sale of the property under attachment in execution of such decree : in view of these provisions namely Section 99 and Section 103 (3) it will have to be held that the property referred under Section 101,-A is the property on which either there should be a charge of encumbrance. Therefore, viewed from any angle, we hold that the trial Court is wrong in dismissing the petition of the appellant filed under Order 21, Rule 58 of the Code of Civil Procedure. " ( 12 ) AFTER carefully going through the rulings, the material provision of Order 21 and Order 38 in the light of undisputed facts, i find that to discriminate the attachment oblained before judgment under Order 38, rule 5 as a separate category and to make the provisions of Rule 57 of Order 21 inapplicable does not stand to reason. This Court in AIR 1970 Mysore 152 and in Vijaya College Trusts case has taken a view that the provisions of Rule 57 also apply to case of attachment before judgment. The Supreme court in Indirammas case also makes specific reference to the provisions of Order 38, rule 11a and Rule 57 of Order 21while laying down the proposition of law that when once ah execution case is dismissed the order of attachment made if any does not get revived. In fact sub-rule (2) of Rule 57 categorically lays down a provision that when an execution case is dismissed without any specific order as to attachment, the attachment; order if any made ceases to exist. It is also clarified that in the absence of specific direction by the Court the attachment ceases. ( 13 ) THE various High Courts held conflicting views on the provisions contained in rule 57 prior to amendment. This Court earlier to amendment while interpreting the provisions of Rule 57 had taken a view in byrappas case that the provisions of Rule 57 apply to cases of attachment before judgment under Order 38, Rule 5. The provisions of Order 38, Rule 11 declares that attachment before judgment granted shall be effective and operative even after passing of the decree and while executing such decree, it is not necessary to seek re-attachment of the property. The position is further clarified by incorporation of Rule 1 l (a) the legislature makes it clear that the provisions relating to attachment made in execution decree is made applicable to the attachment before judgment and further declares that the restoration of a suit dismissed for default in which any order of attachment before judgment made an Interim Order would not get revived by the order of restoration of the suit. In that view it is untenable on the part of the appellant to contend that dismissal of earlier execution petition does not affect the order of attachment. ( 14 ) THE first respondent had purchased the property in dispute under a registered sale deed from the second respondent on 24-11-1983. It was the contention of the first respondent that the property has been purchased for a valid consideration when there was no valid attachment order subsisting. Therefore the decree-holder cannot proceed against the property in question. ( 14 ) THE first respondent had purchased the property in dispute under a registered sale deed from the second respondent on 24-11-1983. It was the contention of the first respondent that the property has been purchased for a valid consideration when there was no valid attachment order subsisting. Therefore the decree-holder cannot proceed against the property in question. In view of the facts and proposition of law discussed above, the objection of the first respondent has to be upheld and I do not find any error in the view taken by the trial Court in this regard. ( 15 ) THE Counsel for the appellant alternatively contended that by virtue of the decree a charge is created on the property and as such the decree-holder is entitled to attach and sell the property for recovery of the decretal amount. ( 16 ) THE trial Court while decreeing the suit has granted the decree in the following manner :"it is ordered that the plaintiffs do recover from the assets of the deceased in hands of defendants the sum of Rs. 89,052-55 claimed in the plaint together with interest on Rs. 80,000/- of at 1 1/4% per mensum from 19-2-1988 to 18-1-197. . . . . . . viz. Rs. 22,900/- in all Rs. 1,11,952. 55 p. together with costs and current interest at 6% per annum on Rs. 80,000/- from the date of decree till the date of realisation. It is further ordered and decreed that the plaintiff do recover from the assets of the deceased in the hands of the defendants the sum of Rs. 8,481. 95 being the amount of costs incurred in this suit as by memorandum annexed. " ( 17 ) THE Counsel for the appellant contended that the direction of the Court to recover from the assets in possession of the deceased defendant amounts to creating a charge on the property and therefore the property is liable for attachment and sale. I am unable to be persuaded by the arguments of the Counsel for the appellant for the reason that there is no specific direction in the decree creating a charge on the property in question. May be a general observation is made that the decree-holder is entitled to proceed against the assets of the deceased in the possession of the defendant. May be a general observation is made that the decree-holder is entitled to proceed against the assets of the deceased in the possession of the defendant. The said wording of the decree does not amount to creating a charge on the property. In order to create a charge, there should be a specific prayer and a specific property should be mentioned for creation of a charge in the absence of such specific plea and specific order it cannot be said that the decree creates a charge on the property in question. In that view of the matter, I find no merit in the appeal. Accordingly, the appeal is dismissed. ( 18 ) THE Counsel for the appellant apprehends that execution case might have been dismissed or closed since it is a very old case. Hence, pray for a clarification. In view of the provisions contained in Order 21. Rule 58, the execution proceedings have to be kept pending until the application under Rule 58 is finally disposed of. If for any reason the execution proceedings are dismissed/closed, the same is directed to be restored to file and permit the appellant/ decree-holder to pursue the execution case in accordance with law. Appeal dismissed. --- *** --- .