Judgment :- 1. Revision petitioner challenges the order in I. A. 403 of 1985 in O.S. 21 of 1986 of the Sub Court, Ottapalam. The respondent (Plaintiff) filed the petition under Order XXXVIII R.5 of the C.P C. for attachment of the amount lying with the Executive Engineer, (Kanhirapuzha Irrigation Project) to the credit of the revision petitioner till he furnished security for an amount of Rs. 1,60,000/-. Revision petitioner was directed to furnish security for Rs. 1,50,000/- to satisfy the plaint claim on or before 16-6-1986 and till then conditional attachment was ordered. It is stated by the petitioner's counsel that as per order in C.M.P. 9016 of 1986 Rs. 50,000/- has been deposited by the petitioner. 2. Contention of the respondent is that the order of the court below under Order XXXVIII R.6 is not amenable to the revisional jurisdiction of this court. Counsel for the revision petitioner relying on 1982 K.L.T. 294 of Rai Premchand & others v. P.K. Ahamed & Co.) contended that the impugned order is revisable. Counsel for the respondent submitted that in 1982 K.L.T. 294 the learned judge has not adverted to Order XLIII R.1 (q) which envisages that an order under R.2 or R.3 or R.6 of Order XXXVIII is appealable. 3. In 1982 K.L.T. 294 (Rai Premchand & others v. P. K. Ahamed & Co.) it is held as follows: "An order of attachment before judgment is one which involves serious adverse civil consequences as regards the defendant. Such consequences will justify a conclusion that the order is a case decided within the meaning of S.115 of the Code of Civil Procedure, going by the principles gathered in relation to the interpretation of that term. When a court has effected an attachment of the goods without any justification and jurisdiction, there is a failure of justice and consequently, curial correction in exercise of the revisional jurisdiction is eminently justified in such a case." In Para.3 of the above judgment it is stated that the learned Advocate-General appearing for the respondent took a preliminary objection that the order is not revisable at all as the order does not amount to a 'case decided' and consequently S.115 C.P.C. is not attracted.
It further states that the learned Advocate General did not pursue the point in the course of his arguments and he did not elaborate the same or seek to support his submissions with reference to statutory provisions or judicial decisions. Thus it is apparent that the attention of the learned judge was not invited to Order XLIII R.1 (q). It is also obvious that the attention of the judge was also not brought to S.115 (2) of the C.P.C. S.115 (2) C.P.C. reads as follows: "The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto." S. 115(2) was added by C.P.C. Amendment Act 104 of 1976. As an order passed under Order XXXVIII R.2, 3, or 6 is specifically made appealable it is difficult to accept the contention of the revision petitioner that the impugned order is revisable. S.115 (2) is mandatory and it postulates that the High Court shall not entertain revision petition under S.115 C.P.C. if the order challenged is appealable either to the High Court or to any court subordinate thereto. 4. It is seen that the learned judge has followed AIR 1972 Rajasthan 141 (V. R. Dutt v. Teeja) and AIR 1980 A.P. 176 (K. Vijayalakshmamma v. S. Lakshmaiah) in 1982 K.L.T. 294. AIR 1972 Rajasthan 141 was a case where the revision petition was filed by the plaintiff against an appellate order framing an issue to the effect whether the defendant was not a defaulter in the payment of rent as the same was offered and tendered to the plaintiff and remitting it for trial to the lower court tinder Order XLI R.25, C P.C. In that decision it is held that the expression "case" is a word of comprehensive import and is not restricted by anything contained in S.115 C.P.C. The above ruling is not helpful to the revision petitioner especially in view of S.115 (2) C.P.C. which clearly enjoins the High Court not to interfere with any order in which appeal lies to the High Court or to any subordinate court thereto.
AIR 1980 A.P. 176 (Y. Vijayalakshmamma v. S. Lakshmaiah and sons) is a case where the High Court while hearing a C.M.A. has adumbrated the principles to be borne in mind when a petition filed under 0.38 R.5 has to be considered. The above ruling is no authority to hold that an order under 0.38 R.6 is revisable. 5. In view of the specific provision that an order under Order XXXVIII R.6 is appealable the legal position can only be that the aggrieved party cannot invoke the jurisdiction of the High Court under S.115 C P.C. S.115 (2) C.P.C. also makes the position abundantly clear. Thus when the Code provides right of appeal the aggrieved party cannot circumvent that remedy available to him and invoke the revisional jurisdiction of the High Court. Therefore it has to be held that the revision petition is not maintainable. The Civil Revision Petition is dismissed. No order as to costs. Dismissed.