1. We are invited in this Rule to set aside an order madeunder r. 60 of Or. XXI of the Code of 1908. The circumstances under which theorder in question has been made are not in controversy. On the 21st July 1910,the Petitioner before us applied for execution of a decree for money which shehad obtained on the 19th March 1910. The properties of the judgment-debtor wereduly attached on the 1st August 1910. The proclamation subsequently issued wasreturned unserved, and the Court directed the decree-holder to take necessarysteps within five days from the 22nd November. No steps were taken, and on the30th November the Court dismissed the application for execution for default. Onthe 12th December 1910, the judgment-debtor transferred the properties whichhad been previously attached by the decree-holder to one Madhabandaram. On the23rd January 1911, the decree-holder obtained a review of the order of the 30thNovember 1910, and the execution proceeding was revived. The decree-holder tooksteps to have the sale proclaimed for the 20th March 1911 The assigneethereupon preferred a claim under r. 51 of Or. XXV of the Code. He contendedthat there was no valid attachment in force when he took the assignment, andthat the subsequent revival of the execution proceeding could not in lawoperate as a revival of the attachment to the prejudice of his rights. TheCourt found on the evidence that the claimant was a bond fide purchaser forvalue without notice, and that the contract with him for the sale of theproperty had been made on the 8th June 1910, long before the decree-holderapplied for execution of his decree. In this view the Subordinate Judge allowedthe claim under r. 60 of Or. XXI. We are now invited to discharge this order asmade without jurisdiction, because it is contended that the properties wereunder attachment on the date of the assignment. The question raised is one ofsome novelty and not altogether free from difficulty mainly because the framersof the Code have omitted to provide for the contingency which has happened. R.57 of Or. XXI of the Code of 1908-- we quote only so much of the rule as isapplicable to this case--provides that where any property has been attached inexecution of a decree, but by reason of the decree-holders default the Courtis unable to proceed further with the application for execution, it shall dismissthe application ; upon the dismissal of such application the attachment shallcease. In the case before us the Court held on the 30th November 1910 thatthere had been default on the part of the decree-holder and dismissed theapplication under r. 57. There upon the attachment ceased in terms of the Rule.Consequently when the assignment was made in favour of the claimant on the 12thDecember 1910, there was no subsisting attachment in force; but it is contendedon behalf of the decree-holder that when the order of dismissal for default wasset aside on review on the 23rd January 1911, the parties were restored to theposition they occupied before the execution proceeding was dismissed ; in otherwords, the contention is that the effect of the revival of the executionproceeding was to revive the attachment automatically. It may be assumed thatthis would be the result in so far as the decree-holder and the judgment-debtorwere concerned. But the question still remains whether the revival of theexecution proceeding operates as a revival of the attachment so as to prejudicethe right of strangers who have in the interval acquired, as here, a title tothe property. In our opinion the question ought to be answered in the negative.At the time when the assignment was made there was no attachment in force. Theassignee consequently acquired a good title in no way subject to the claim ofthe decree-holder. It is difficult to appreciate upon what principle hisposition may be deemed to be affected by a subsequent reversal of the order bya superior Court or by a cancellation thereof on review by the Court that hadmade it. The principle recognised by their Lordships of the Judicial Committeein Zainul-abdin v. Mahomed Ashgar L. R. 15 I. A. 12 (1887) militates againstthis view. Numerous other instances will be found collected in the judgment ofthis Court in Janukdhari Lal v. Gossain Lal Bhaiya I. L. R. 37 Cal, 107 [LQ/CalHC/1909/130] : s. c.11 C. L. J. 254 ; 13 C. W. N. 710 (1909), in which the reversal of a judicialorder has been taken to leave unaffected the rights of bona fide purchasers whohave acquired title on the assumption that such orders were valid in law.Although in the case before us the assignment was by act of parties the samedoctrine may well be applied. Here the Court had made an order for thedissolution of attachment : that order was in force at the date of theassignment to the claimant and was cancelled only after his title had beenperfected. Reference may be made in this connection to the cases of Chetiattil v.Kumhi I. L. R. 29 Mad. 175 (1905) and Sasirama Kumari v. Meherban Khan 18 C. L.J. 243 (1911). In the former of these cases an attachment was issued after anex parte decree had been set aside on the basis of an application madeapparently when the decree was in force. The decree was subsequently restoredafter trial on the merits. It was ruled that this could not validate theattachment so as to prejudice an assignee of the attached property. In thesecond case an attachment had been effected before judgment and it wasdissolved upon dismissal of the suit by the original Court. Upon appeal thedismissal was set aside and a decree made in favour of the Plaintiff. It wasruled that the reversal of the decree of the primary Court did not operate torevive the attachment to the prejudice of an assignee who had acquired a goodtitle during the pendency of the appeal when no attachment was in operation.The true object of an attachment is to place the property in the custody of theCourt so as to make it available for the realization of the fruits of thedecree. If by reason of the dismissal of the suit or of the default of thedecree-holder the Court dissolves the attachment, the property ceases to be inthe custody of the Court. Upon reversal of the decree, or upon cancellation ofthe order of dismissal for default, the decree-holder may no doubt ask theCourt to take the property back into its custody : but in the absence ofstatutory provision to the contrary, we cannot hold that the Court can do sowith retrospective effect so as to prejudice a title that may have beenacquired in the interval when the property was admittedly not in the custody ofthe Court. As is pointed out in the case of Sasirama Kumari v. Meherban Khan 13C. L. J. 243 at p. 249 (1911), the question has been much debated in the Courtsof the United States, and though there has been some divergence of judicialopinion the preponderance of decisions is against the revival of attachmentswith retrospective operation to the detriment of titles acquired in theinterval. (Drake on Attachment, Ch. XVI). In some States the difficulty of thesituation has been met by legislation, and conditions have been prescribed uponfulfillment of which an attachment, notwithstanding dismissal of the suit, mayremain in suspense, and its uninterrupted operation restored upon reversal ofthe judgment. But in this country, as we have already stated, there is nolegislative provision on the subject, and the plain meaning of r. 57 of Or. XXIis that upon dismissal of the application for execution by reason of default ofthe decree-holder the attachment ceases. We cannot hold that the attachmentremains in suspense pending the result of the possible appeal or applicationfor review. It has been suggested that this view may result in hardship to thedecree-holder in cases where an erroneous order of dismissal for default hasbeen made by the Court, but that is obviously a matter for the Legislature toconsider. We may add that if the view we take may result in hardship to thedecree-holder in some instances, the contrary view put forward by the learnedVakil for the Petitioner may equally lead to injustice to an assignee for valuewho has in the interval acquired title on the faith that the order of the Courthas been properly made. We are, therefore, of opinion that there was noattachment in force when the claimant in this case took an assignment of theproperty which has been properly released under r. 60.

2. We may add that it was argued that if there was noattachment in force, a claim or an objection could not be preferred under r.58. This position is no doubt technically correct, Sasirama v. Meherban 13 C.L. J. 243 (1911), but there is no substance in it. As there is no attachment inforce the decree-holder ought strictly to be called upon to attach theproperty. As soon as he proceeds to do so, the claimant will be at liberty toapply under r. 58, and then the Court will be called upon to determine whetherthe assignment was real, that is whether the assignee was in possession on hisown behalf or that of the judgment-debtor. This matter has already beeninvestigated and found against the decree-holder. It would be an idle formalityto call upon the parties and the Court to repeat the steps already taken. Theresult, therefore, is that this Rule is discharged with cost. We assess thehearing-fee at one gold mohur.

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Patringa Koer vs. Madhava Nand Ram and Ors. (24.08.1911 -CALHC)