V.P.Mathur, J. - (1.) THIS Civil Revision purporting to be under Section 115 of the Code of Civil Procedure is directed against the judgment and order passed on 11.7.1984 by Smt. Saroj Bala, the then 1st Civil Judge, Meerut in Execution case No. 32 of 1965 and Miscellaneous Case No. 1959 of 1974. The learned Civil Judge has dismissed an application for restoration of the execution case. The revisionist is the defendant of the original suit. A decree on compromise was allegedly passed for recovery of money on 30.3.1965. The original decree holder died. The heirs were brought on record and on 16.7.1965 the execution was stated. On 6.11.1974 the judgment debtor applied under order 23 Rule 3 read with Section 151 of Code of Civil Procedure and moved the Court under order 21 Rule 2 C.P.C. On 7.1.1978 another application similar to the first was moved and the Court fixed monthly instalments and gave effect to the compromise, and postponed the execution for sometime. It is contended that ultimately the entire amount was paid up. The execution was however proceeded with and therefore the objections under Section 47 were filed. These objections were rejected on 15.2.1982. Civil Revision No. 190 of 1982 is pending against this order. It appears that on 31.3.1982 the High Court during the hearing of the Civil Revision stayed the proceedings in miscellaneous case No. 159 of 1974. On 13.5.82 the High Court further stayed the execution proceedings also. On 20.7.1982 the revision was dismissed but it was restored on 20.9.1982. The order of restoration shows that the dismissal had been under chapter 12 Rule 4 of the Rule of Court, in the ground that the office had reported that the revisionist had not taken steps to serve the opposite party. This report was however found to be wrong as the opposite parties were all represented by the learned counsel. The ground was held to be sufficient and the order dated 20.7.1982 was recalled. Meanwhile on 22.1.1983 application order 21 Rule 2 C.P.C. was dismissed by the Court below and an application for restoration was moved. It was dismissed on 11.7.1984 and the present revision is directed against the dismissal of that order. The contention of the learned counsel is that the dismissal of the restoration application was illegal in as much as a stay order had been obtained from the High Court on 13.5.1982 and earlier on 31.3.1982 and these stay orders were in operation on 11.7.1984 when the order of dismissal was passed by the learned Civil Judge. The contention on the other side is that these stay orders were no more in operation and hence no question of stay of the proceedings arose. The order of the learned Civil Judge is explicit in this respect. The learned Civil Judge has taken note of the fact that the Judgment Debtor had filed a civil revision before the High Court and had obtained an order staying the proceedings in Misc. case No. 159 of 74 till further orders. By subsequent order dated 31.3.1982 this stay order was made applicable to the execution case No. 32 of 1965 also. Civil Revision No. 190 of 1982 was however dismissed by the High Court on 20.7.1982 and in the opinion of the learned Civil Judge with this dismissal, stay orders dated 31.3.82 and 13.5.82 automatically came to an end. The only question that arises for determination before me(Sic) is whether this view of the learned Civil Judge is justified and should be upheld or whether it is against the provisions of law. In the event if it is found to be a correct order, then there will be no force in this revision and no justification for allowing it, but if it is found that the learned Civil Judge's view was legally incorrect and the stay order should be deemed to have continued in view of the restoration of the revision, then she will have no jurisdiction to pass the impugned order and proceed with the matter. The learned counsel for the revisionist has placed reliance upon a number of cases of different High Courts. In the case of Saranath Ayyanagar v. Muthiah Moopanar and others : A.I.R. 1934 Mad. 49, the matter was concerned with an interlocutory order. The suit was dismissed for default. It was restored and the High Court held that all interlocutory matters whether pending in the trial Court or Appellate Courts are also restored unless the order of restoration expressly mentions anything against this view. The question is ultimately to be decided with reference to the intention was to. restore the interlocutory matters also along with the restoration of the suit then whole of the case re -opens including interlocutory orders. In another case of Tawala Veeraswami v. Pulin Bramanna and others : A.I.R. 1935 p. 365, the Full Bench of Madras High Court was considering a case in which the order dismissing the suit for default, had been set aside. It came to the conclusion that the result of restoration of the suit would be that the suit would remain as it was on the day when it was dismissed and all proceedings taken up on that date must be deemed to be in force. When the dismissal is set aside this will also mean that all interlocutory orders will be revived and even an order of attachment of property will also stand revived. A Division Bench of the Andhra Pradesh High Court in the matter of Nandipati Rami Reddi and others v. Nandi Pati Padma Reddy and others : A.I.R. 1978 A.P., 30, again held that were a suit is restored, the interlocutory orders and their operation during the period of interregnum are revived, unless the Court either expressly or impliedly excludes the operation of the interlocutory orders during the period of dismissal and restoration. It was further held that unless a specific order in this respect is made, it may be safely presumed that their enforcement during that period also stands restored. Lastly the case of Bankim Chandra and others v. Chandi Prasad : A.I.R. 1956 Pat. 271, lays down that it is well obvious from the entire scheme of law laid down in the Code of Civil Procedure that interlocutory orders like one of stay are nothing but ancillary orders and they are meant to aid and supplement the ultimate decision to be arrived at in the main suit or appeal. Therefore, once a suit or appeal, dismissed for default is restored by the order of Court, all ancillary orders passed in the suit or appeal before its dismissal also revive and operate since that date with all their legal implications, unless there is any other factor on record or in the order passed, to show to the contrary.
(2.) THE decision taken by this Court however has all along been quite different. As far back as in 1887 in the Division Bench case of Chunni Kuar v. Dwarka Prasad, 1887 All. Weekly Notes, 297, it was observed that an attachment before judgment like a temporary injunction becomes functus officio as soon as the suit terminates. Then a similar case pertaining to an attachment before judgment came up for consideration before this Court in the matter of Ramchand v. Peetam Mal : 1888 I.L.R., 10, All. 506. Reliance was placed on Chunni Kuar's case (supra) and the principle laid down in that case was reiterated with approval. Finally, similar matter was raised before the Full Bench of this Court in the matter of Abdul Hamid v. Karim Bux and others : A.I.R. 1973 Alld. p. 67, on the basis of majority view, it was held by the Full Court that on the dismissal of suit in default, the attachment before judgment automatically ceases and is not revived on restoration of the suit. A large number of cases were considered while laying down this law. In the case of Nagar Mahapalika Lucknow v. Ved Prakash : 1976 All., 264, the Court again considered the case of interim injunction order. The suit which was dismissed for default, was restored. It was held that interim injunction order would cease immediately on dismiss a of the Suit and would not automatically revive on the setting aside of the dismissal order and the restoration of the suit. In Abdul Hamid's case (supra), the Full Bench decision of the Mysore High Court in Gangappa v. Boregowda : A.I.R. 1955, Mys., 91, was quoted with approval. It lays down that an attachment before judgment was in the nature of an interlocutory order. In Nagar Mahapalika case (supra), the order of injunction which was an ancillary order, was also held to be an interlocutory order. It clearly means that the law as laid down by this Court has consistently been that an interlocutory or ancillary order is not revived by the restoration of a suit which had been earlier dismissed for default. For a revival of the interlocutory or ancillary order, a specific order has to be obtained from the Court. There is no distinction except regarding the consequences, between an order of injunction, order of attachment before judgment and order of stay of the proceedings. The first two are orders to bind a particular party. The third is an order issuing direction to a subordinate Court, but all the three are ancillary and interim orders. They work towards the ultimate decision of the main suit or a proceeding and are in the nature of aid and supplements to the suit or proceeding itself. It does not make any difference, though from orders passed under Order 38 Rule 5 and under order 39 Rules 1 and 2, appeals are provided, while from the order of stay, no appeal is provided. All the three types of orders are integral parts of the suit or proceeding itself. Therefore, in view of the consistent law laid down by this Court right from 1887, all these ancillary and interim orders including the order of injunction, of an attachment before judgment and of stay have to fall as soon as the suit or proceeding is dismissed. The restoration of the suit or proceeding itself will not revive these orders. A separate order for revival will have to be obtained. This being so, the order passed by the learned Civil Judge was perfectly justified. There is no force in this revision and it is hereby dismissed with costs.;