Trivedi, J. - (1.) THIS plaintiffs second Civil Appeal has been referred to the Full Bench on account of the importance of a question of law involved in the case. The question involved is whether on the dismis sal of a suit in default the attachment be fore judgment automatically lapsed and a fresh attachment was necessary on the res toration of the suit, or whether on the res toration of the suit the attachment previous ly made is revived or is survived.
(2.) SMT . Muradan and her husband Nasib Ullah had purchased a house on 16-1-47. The plaintiff-appellant had filed a suit for recovery of certain sum of money against Nasib Ullah in the year 1951 and on an application made got the half share of Nasib Ullah in the house attached before judgment on 11-11-51. The suit was there after dismissed for default but was subse quently restored and ultimately decreed. In execution of the decree the half share of Nasib Ullah was sold and purchased by the plaintiff-appellant. The sale was confirmed on 28-10-59. The appellant claimed to have taken possession on 6-5-60. The contesting defendant-res pondent Karim Bux claimed to have acquir ed Nasib Ullah's share in the house under a sale deed dated 4-8-53. This sale deed was executed after the restoration of the suit. The defendant Karim Bux's contention was that on the dismissal of the suit in default the attachment before judgment lapsed and since no fresh attachment was made the sale affected by Nasib Ullah on 4-8-53 remained unaffected and Nasib Ullah thereafter was not left with any subsisting title to or inte rest in the house which could have been sold hi execution of the decree passed in appellant's favour. The contention of the respondent was repelled by the trial Court but upheld by the lower appellate Court hence this second Civil Appeal.
(3.) ORDER 38, R. 6 of the Civil Proce dure Code authorises a Court to attach be fore judgment the property of the defendant hi case the Court is satisfied that the defendant in order to delay or defeat the execu tion of a decree that may be passed against him is about to remove or dispose of his property and has failed to furnish the re quired security. Order 38, Rule 9 is the subject-matter of interpretation which is in these words:- "Where an order is made for attach ment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed." ;