Judgment :- 1. Plaintiff in OS 3 of 1986 on the file of the Subordinate Judge, Trichur is the appellant. The appellant filed a suit against the first defendant-respondent for realisation of Rs. 3,23,680 with future interest at 12 per cent per annum The plaintiff was the General Secretary of the Trichur Jilla Mahallu Jumayath Association. He entered into a karar on 24th December, 1982, with the 1st defendant for the purchase of a printing press for a consideration of Rs. 2,90,000/-. On the date of the karar the plaintiff paid Rs. 40,000/-and thereafter on various dates he paid amounts and these payments, except the amount paid on 1-3-1984, have been endorsed in the karar. For the payment of Rs. 22,000/- on 1-3-1984 the plaintiff obtained separate receipt. Thus the first defendant paid Rs. 2,57,500/- and he waited for the execution of the document. The 1st defendant did not make any arrangement for the execution of the sale deed and postponed the same under some pretext or other. The plaintiff caused to send a lawyer notice on 21-4-1984 demanding specific performance. The 1st defendant informed the plaintiff the he had other debts to be paid to the State Bank of India and he wanted to sell the printing press to some others to discharge those debts. The 1st defendant also agreed to repay the amount due to the plaintiff. The 2nd karar was entered into between the parties and in pursuance of that karar the first defendant offered to pay Rs. 30,000/- towards damages. Thereafter, the 2nd defendant, the wife of the first defendant, issued a cheque to the plaintiff for Rs. 30,000/-. The cheque; when presented to the Bank bounced and the plaintiff could not realise any amount. The plaintiff also alleged in the suit that the first defendant requested the plaintiff to go to the former's place of business on 11-12-1985 with the original 2nd karar and the plaintiff accordingly went to the shop of the first defendant and the first defendant by some clandestine method obtained the original karar from the plaintiff. The first defendant did not return the original karar and the plaintiff was constrained to file a police complaint on 14-12-1985. With these allegations the plaintiff filed a suit for realisation of the amount due to him. 2. The 1st defendant admitted his transaction with the plaintiff. The first defendant did not return the original karar and the plaintiff was constrained to file a police complaint on 14-12-1985. With these allegations the plaintiff filed a suit for realisation of the amount due to him. 2. The 1st defendant admitted his transaction with the plaintiff. However, he disputed some payments made by the plaintiff. The 1st defendant also contended that he had discharged the major portion of the amount due to the plaintiff. The first defendant contended that the payment made by him to the plaintiff had been endorsed in the original of the 2nd karar. 2A. The plaintiff filed an application under 0.38 R.5 CPC for interim attachment before judgment of the petition schedule immovable properties belonging to the 1st defendant. The first defendant resisted this application for the reason that the averments in the accompanying affidavit were vague and inaccurate. The court below dismissed the application. The reasons for the dismissal of the application are given in the last paragraph of the order which is to the following effect: "On this aspect I find that the pleadings contained in the affidavit filed in support of this petition is vague one and the plaintiff has made a general pleading that respondent-first defendant is attempting to transfer or assign his properties. There is no specific pleadings as to whom he is going to sell or an agreement made etc." 3. The learned counsel for the first defendant as a preliminary objection questioned the maintainability of this appeal. It was contended that the impugned order was passed under 0.38 R.5 CPC and therefore the same is not appealable under 0.45 Rule 1(q). The orders made under 0.38 R.2,3 and 6 alone are made appealable. In the instant case the plaintiff filed the application for interim attachment and the notice was ordered, and in pursuance of the notice advocate appeared and filed objection. No interim or conditional attachment was granted on presentation of the petition. After hearing both sides the court below passed the impugned order disallowing the prayer for attachment. 3A. The question that arises for consideration is whether the impugned order can be construed as one passed under 0.38 R.6 CPC. No interim or conditional attachment was granted on presentation of the petition. After hearing both sides the court below passed the impugned order disallowing the prayer for attachment. 3A. The question that arises for consideration is whether the impugned order can be construed as one passed under 0.38 R.6 CPC. The relevant provisions, 0.38 R.5 and 6, read as follows: "5 Where defendant may be called upon to furnish security for production of property (1) Where, at any stage of a suit, the Court it satisfied, by affidavit or otherwise, 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 to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said properly or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security (2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provision of sub-rule (1) of this rule, such attachment shall be void. 6. Attachment where cause not shown or security not furnished (1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached. (2). (2). Where the defendant shows such cause or furnishes the required security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit." The impugned order shows that the learned Subordinate Judge has passed the order under 0.38 R.5 CPC 0.38 R.6 would apply only in a case where the court passes a conditional or interim attachment and issues notice to the defendant to show cause why he should not furnish security. If an order is passed under clause (1)(b) of 0.38 R.5, directing the defendant to furnish security within a time fixed by the court, or to appear and show cause why he should not furnish security and thereafter an order was passed by the Court, then only the same could be said to be an order passed under 0.38 R.6. From a reading of sub-rule (2) of 0.38 R.6 it is clear that it is not applicable in a case where there was no conditional attachment of the whole or portion of the property, or in other words, sub-rule (2) of 0.38 R.6 is not intended to cover cases in which the defendant successfully shows cause against attachment before judgment in which no conditional attachment under R.5(3) had been made. 0.38 R.6 contemplates cases where conditional attachment before judgment was ordered and later withdrawn when the defendant showed cause. Therefore, the impugned order squarely comes within order passed under 0.38 R.5, which is not made appealable under 0.43 R.1(q). 4. The learned counsel for the plaintiff brought to our notice the decision of this Court in Rvuru Nair v. Govindan Nair (AIR 1961 Ker. 75) and contended for the position that though an order refusing to appoint a receiver is not specifically appealable an appeal would lie as the order is only a counter-part of an order appointing a receiver. Under O.43 R.1(s) all orders made under O.40 R.1 and 4 are made appealable. It was only under such circumstances that this Court held that the order appointing a receiver, or refusing to appoint a receiver or an order discharging a receiver or order refusing to discharge a receiver etc. were appealable under 0.43 R.1(9). Under O.43 R.1(s) all orders made under O.40 R.1 and 4 are made appealable. It was only under such circumstances that this Court held that the order appointing a receiver, or refusing to appoint a receiver or an order discharging a receiver or order refusing to discharge a receiver etc. were appealable under 0.43 R.1(9). That analogy cannot be applied to the instant case, since under 0.43 R.1 it is specifically made clear that an order passed under 0.33 R.2,3 and 6 alone are made appealable. The right to file an appeal is a statutory right and the court cannot enlarge the powers and import things which are not found in the statute. The impugned order is one which is passed under 0.38 R.5 CPC and the same is not appealable under 0.43 R.1(q) CPC. Therefore, the appeal is not maintainable. 5. The appellant has filed CMP No. 19689 of 1987 to convert the CMA into a CRP The counsel for the defendant has seriously urged that the prayer for attachment of the properties of the defendant has been rightly disallowed by the lower court and the court has not exercised any jurisdiction not vested in it, not has it failed to exercise the jurisdiction so vested. It was also contended that the impugned order does not suffer from any illegality or material irregularity and therefore the same is not liable to be revised under S.115 of the CPC. We are not inclined to accept the contention of the defendant. 6. The court below disallowed the prayer for attachment for the reason that the averments in the accompanying affidavit were vague and inaccurate. It has also been observed by the court below that the plaintiff could not give the source of information of the proposed sale or the whereabouts of the person to whom the defendant made arrangements to sell the property. A perusal of 0.38 R.5 shows that the plaintiff in suit is entitled to seek an attachment before judgment where the defendant with the intention to obstructor delay she execution of decree that may be passed, is about to dispose of the whole or any part of his properly. The court while construing these provisions should keep in mind the pragmatic difficulties of a plaintiff. The court while construing these provisions should keep in mind the pragmatic difficulties of a plaintiff. The defendant if he had intention to defeat or delay the execution of the decree that may be passed against him would be disposing of the property in a clandestine manner. The plaintiff would not be in a position to know all she details of that transaction. It is true that mere allegation of the plaintiff is not sufficient to order as attachment before judgment. Justice Sinha, as he then was, in Premraj Mundra v. Md. Maneck Gazi (AIR 1951 Calcutta 156) has enumerated the circumstances under which an attachment could be made. The Court observed: "(10) From a perusal of all the authorities, I think that the following guiding principles can be deducted: (1) That an order under 0.38, R.5 & 6, can only be issued, if circumstances exist as are stated therein. (2) Whether such circumstances exist is a question of fact that must be proved to the satisfaction of the Court. (a) That the Court would not be justified in issuing an order for attachment before judgment, or for security, merely because it thinks that no harm would be done thereby or that the defts, would not be prejudiced. (4) That the affidavits in support of the contentions of the applicant, must not be vague, and must be properly verified. Where it is affirmed true to knowledge or information or belief, it must be stated as to which portion true to knowledge, the source of information should be disclosed, and the grounds for belief should be stated. (5) That a mere allegation that the deft, was selling off all his properties is not sufficient. Particulars must be stated. (6) There is no rule that transaction before suit cannot be taken into consideration, but the object of attachment before judgment must be to prevent future transfer or alienation. (7) Where only a small portion of the property belonging to the deft, is being disposed of, no inference can be drawn in the absence of other circumstances that the alientation is necessarily to defraud or delay the pltf's claim. (8) That the mere fact of transfer is not enough, since no body can be prevented from dealing with his properties simply because a suit has been filed. (8) That the mere fact of transfer is not enough, since no body can be prevented from dealing with his properties simply because a suit has been filed. There must be additional circumstances to show that the transfer is with an intention to delay or defeat the pltf's claim. It is open to the Court to look to the conduct of the parties immediately before suit, and to examine the surrounding circumstances, and to draw an inference as to whether the deft, is about to dispose of the property, and if so, with what intention. The Court is entitled to consider the nature of the claim and the defence put forward. (9) The fact that the deft, is in insolvent circumstances or in acute financial embarrassment, is a relevant circumstance, but not by itself sufficient. (10) That in the case of running business, the strictest caution is necessary and the mere fact that the business has been closed, or that its turnover has diminished, is not enough. (11) Where however the deft, starts disposing of his properties one by one, immediately upon getting a notice of the pltt's claim, and/or where he had transferred the major portion of his properties shortly prior to the institution of the suit, & was in an embarrassed financial condition, these were grounds from which an inference could be legitimately drawn that the object of the deft, was to delay and defeat the pltf's. claim. (12) Mere removal of properties outside jurisdiction, is not enough, but where the deft, with notice of the pltf's. claim, suddenly begins removal of his properties outside the jurisdiction of the appropriate Court, and without any other satisfactory reason, an adverse inference may be drawn against the deft. Where the removal is to a foreign country, the Inference is greatly strengthened. (13) The deft, in a suit is under no liability to take any special care in administering his affairs, simply because there is a claim pending against him. Mere neglect, or suffering execution by other creditors, is not a sufficient reason for an order under 0.38 of the Code. (14) The sale of properties at a gross undervalue, or benami transfers, are always good indications of an intention to defeat the pltf's claim. The Court must however be very cautious about the evidence on these points and not rely on vague allegations." 7. (14) The sale of properties at a gross undervalue, or benami transfers, are always good indications of an intention to defeat the pltf's claim. The Court must however be very cautious about the evidence on these points and not rely on vague allegations." 7. Here the plaintiff filed the suit on the basis of an agreement entered into between himself and the 1st defendant. 1st defendant admits the transaction. He also admits that he had received the various amounts the details of which are given in the plaint. The first defendant pleads discharge of the various amounts paid by the plaintiff. In the plaint it is also alleged that the first defendant played some fraud upon the plaintiff and got back the original document. There is yet another aspect also that the plaintiff got a cheque from the 2nd defendant for an amount of Rs. 30,000/- and the cheque when presented before the Bank the same was dishonoured. Of course the 1st defendant has got his own explanation for all these allegations. According to the plaintiff the conduct of the first defendant was highly suspicious and he had every right to believe that the first defendant would further cheat the plaintiff by transferring his property to others. Under those circumstances the plaintiff filed the application for attachment of the immovable properties. The learned counsel for the defendants cited the decision reported in Rai Premchand v. Ahamed (1982 KLT 294) and contended for the position that an attachment should not be allowed on mere allegation of the plaintiff that the defendant took steps to transfer the properties with intention to delay the execution of the decree. The observations of the learned judge were made in a case where the plaintiff wanted to attach certain movable properties belonging to the defendant, whereas in the present case the plaintiff seeks attachment of immovable properties. If the first defendant is able to give sufficient security for the plaint amount, he can avert the attachment. It is also important to note that the 1st defendant has not given any statement before court that he had no intention to alienate the property. In the affidavit filed along with the application the plaintiff stated that the 1st defendant was taking steps to transfer the properties to others and the same was being done with an intention to delay and defeat the execution of the decree. In the affidavit filed along with the application the plaintiff stated that the 1st defendant was taking steps to transfer the properties to others and the same was being done with an intention to delay and defeat the execution of the decree. The details of the proposed transaction are not given in the affidavit. Probably the plaintiff was not aware of those matters. This is a case where the plaintiff had parted with a huge amount to the 1st defendant. The allegation of the plaintiff is that the conduct and antecedents of the first defendant prior to the suit were not fully honest. These circumstances also should have weighed with the court while considering the petition for attachment. The Court below has seriously erred in holding that the attachment prayed for was not allowable for the simple reason that there was only vague allegation in the affidavit and the plaintiff could not mention the name of the proposed buyer of the property of the defendant. 8. An order of this nature, if allowed to stand, would cause a failure of justice or irreparable injury to the plaintiff against whom it was made. Therefore the impugned order is liable to be interfered with, under S.115(1)(a) of CPC. The CMP 19689 of 1987 filed by the plaintiff is allowed and the Office will register CMA 58 of 1986 as a CRP and we allow the unnumbered CRP and order conditional attachment of the properties of the 1st defendant scheduled in the petition. The 1st defendant is directed to furnish security for the plaint claim within a period of 2 months, failing which the conditional attachment shall become absolute. The unnumbered CRP is allowed. The parties to bear their costs.