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1989 DIGILAW 993 (ALL)

Hindcarpets v. O. K. Dyes

1989-12-22

G.D.DUBE, N.N.MITHAL

body1989
JUDGMENT 1. On an application under Order 38, Rule 5, C.P.C., the Trial Court has passed an order which is under challenge here by which it is directed hat the appellants should give security by 23m of December, 1989, which will be subject to acceptance by the Court. If security to the satisfaction the Court is not furnished by the said date, the property in question would be liable to attachment. The Court further ordered that the matter may be put up on 7th January, 1990 for further order. 2. According to learned counsel for the appellants, this is an order which falls under Rule 6 of Order 38, C.P.C. and, therefore, it is an appealable order. 3. A persual of Order 38, Rule 6, CP.C., however, would indicate that if any of die two preconditions i.e. the party fails to furnish security within time specified or it fails to show cause to the notice issued under Rule 5, is satisfied the court has the power to order attachment of the property or a part, thereof. A persual of this rule, therefore, leaves no room for doubt that specified order of attachment is necessary and merely because the Court finds that specified preconditions are present in a given case, it cannot ipso facto be assumed to be an order of attachment before judgment. It is always open to die Court, even after the party fails to furnish security or to show cause, to extend the time either suo moto or on an application being made in that behalf. The order of the nature passed by die Trial Court, therefore, by itself cannot be termed as an order of attachment before judgment. As a matter of fact 110 attachment in pursuance thereof can be effected until an order directing attachment is made. Under Order 43, Rule 1 (a) C.P.C., only an order passed under Rules 3, 4 or 6 of Order 38, C.P.C. is appealable. Admittedly, the present order is not one under Rules 2 and 3. As we have seen above, die order is also not under Rule 6 as it still requires passing of a final order by the Court for which 7th January, 1990 has been fixed. 4. Admittedly, the present order is not one under Rules 2 and 3. As we have seen above, die order is also not under Rule 6 as it still requires passing of a final order by the Court for which 7th January, 1990 has been fixed. 4. Learned counsel also submits that this order taken into account all relevant aspects required for disposing of an application under Rule 5 and has trappings of an order of attachment Consequently, it is urged that the order must be deemed to be an appealable order. We cannot accept this submission. This order only provides the reasoning behind the order, but the appealable order will come into existence only after a specific order of attachment is passed by the Court. 5. Learned counsel for the appellant, however, urged that if the reasons are given in the earlier order and the final order is merely for issuing the attachment, the appeal will hove to be filed only against the latter. In the circumstances, the final order will not contain any reason whatsoever and it will be difficult for die appellate Court to have a chance to look into the reasons which persuaded it to pass the order of attachment. What the learned counsel submits appeals to be correct. However, in such a situation it may be necessary for the parties to file an appeal against the final order an also attach a copy of the reason recorded by the Court earlier. This prima facie appears to us to be a proper way in which an appeal should be filed in those circumstances. 6. For the reasons given above in our opinion, the impugned order is not appealable and the appeal is not maintainable. It is accordingly dismissed.