P. KRISHNA MOORTHY, J. ( 1 ) THE only question involved in this civil revision petition is as to whether an appeal is maintainable under Order 43, Rule l (q) of the Code of Civil Procedure against the dismissal of the application for attachment before judgment when there is no Order for conditional attachment pending consideration of the application. ( 2 ) A suit was filed by the plaintiff for money, in which, he filed an application for attachment before judgment of the properties of the defendant. Notice was ordered on the above application, but there was no Order of conditional attachment. On the defendant showing cause, the trial court dismissed the application for attachment before judgment. Against that Order, the plaintiff filed an appeal before the lower appellate court and the lower appellate court allowed the appeal and directed the defendant to furnish security. It is this Order that is challenged in this revision petition. ( 3 ) THE only point urged by the learned counsel for the revision petition is that, on appeal shall lie against an Order dismissing the application for attachment before judgment, when there is no Order for conditional attachment passed under Order 38, Rule 5, Civil Procedure Code. Order 43, rule1 (q) provides for an appeal against an Order under Rule 2, Rule 3 or Rule 6 of Order 38. The question to be decided is as to whether the Order of the trial court rejecting the application for attachment before judgment when there is no conditional attachment is one coming under Rule 6 or not. Order 38, rules 5 and 6 which are relevant are to the following effect:"5. Where defendant may be called upon to furnish security for production of property. Order 38, rules 5 and 6 which are relevant are to the following effect:"5. Where defendant may be called upon to furnish security for production of property. (1) where at any stage of a suit, the court is 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 property 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 provisions 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) 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". (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". ( 4 ) LEARNED counsel for the revision petitioner relied on the decisions of andhra pradesh High Court in Union bank of India, Visakapatnam v. M/s. Andhra Technocrat industries and another; Om Prakash and Others V. Mohammad Ishaq and others; F. X. Rebello v. Firm Ladhasingh Bedi and Sons and Kedarnath Himatsinghka and others v. Tejpal Marwari and others, in support of his position that an Order dismissing the application under Order 38 would not be an Order under Order 38, Rule 6 when there is no Order of conditional attachment passed by the court under Order 38, Rule 5, Civil Procedure Code. In union bank of india's case, supra, it was held that, no appeal shall lie under Order 43, rule1 (q), Civil Procedure Code where no conditional attachment has been made under Order 38, Rule 5 (3), Civil Procedure Code and the application for attachment before judgment ends in dismissal on the defendant showing cause against it. This view was taken by the andhra pradesh High Court following the decision of nagpur High Court in f. x. rebello's case, supra; and that of patna High Court in kedarnath himatsinghka's case, supra. To the same effect is the decision in om prakash's case, supra, as well. Their lordships dissented from the view expressed by the Madras High Court in T. B Seetharama Chettiar v. Sellathammal. ( 5 ) ON an anxious consideration of the matter, I find it difficult to agree with the view taken by the andhra pradesh, allahabad, and nagpur high courts in the matter and I would prefer to follow the decision of the Madras high court in t. B. Seetharama chettiar's case, supra. On a reading of Order 38. Rules 5 and 6, it is clear that Rule 5 provides that, when application is made for attachment before judgment, the court can pass an Order for security immediately or may issue notice to the defendant to appear and show-cause as to why he should not furnish such security. Thereafter, as to what is to be done is provided for in Rule 6. Thereafter, as to what is to be done is provided for in Rule 6. Sub-rule (1) of Rule 6 provides that, where the defendants 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. Sub-rule (2) provides that, 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. In other words, under sub-rule (2) of Rule 6, the court can either pass an Order withdrawing the conditional attachment already made if the defendant shows sufficient cause and if no conditional attachment is already ordered, the application has to be dismissed. Both these types of orders would come within the scope of Rule 6 of Order 38, Civil Procedure Code. Otherwise, the words "or make such other Order as it thinks fit" would become nugatory. If the view taken by the andhra pradesh and other courts referred to above are to be followed, then there is no provision under Order 38 as to what the court should do in case the defendant shows-cause in pursuance to a notice under Order 38, Rule 5 when the court has not made any Order of conditional attachment. When an application for attachment before judgment is filed under Order 38, the court has to issue a notice to the defendant asking him to show-cause or direct him to furnish security or to appear and show-cause as to why he should not furnish security. Under Rule 5 (3) while issuing notice, the court may also, by an Order direct conditional attachment of the whole or any portion of the property so specified. It is not necessary that in all cases, an Order for conditional attachment should be made while issuing notice to the defendant. If the court issues notice only to the defendant, the court has to take a final decision in the matter as to whether the defendant should be directed to furnish security or that an Order for attachment should be made. If the court issues notice only to the defendant, the court has to take a final decision in the matter as to whether the defendant should be directed to furnish security or that an Order for attachment should be made. If the defendant shows sufficient cause for not furnishing security, certainly, the court is competent to dismiss the application for attachment before judgment. Under Rule 6 (2) of Order 38 in the last portion it provides that, court shall Order the attachment to be withdrawn, or make such other Order as it thinks fit. The words "such other Order as it thinks fit" would include the dismissal of the application also, when, there is no conditional attachment pending consideration of the application. Accordingly, I am clearly of the view that Order 38, Rule 6 (2) would cover also the case of dismissal of application for attachment before judgment even if there is no Order of conditional attachment under Rule 5 (3) and I respectfully dissent from the view taken by the andhra pradesh, Allahabad and nagpur high courts. I am clearly of the opinion that the above aspect has been correctly stated by the Madras High Court in the decision of seetharama chettiar's case, supra. The learned judge has observed as follows:"sub-RULE (1) of Rule 6 deals with a case where the defendant fails to show-cause or fails to furnish security. Sub-clause (2) provides in respect of a case where the defendant shows such cause we must take it in this case that the court was satisfied that the defendant appeared and did show-cause why an Order for security or for attachment before judgment should not be made against her. The Rule says, "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". Curiously enough there is a comma after the word security and there is also a comma after the expression "to be withdrawn". That would seem clearly to indicate that the provision is that if the defendant shows such cause and there has already been an attachment, the attachment shall be withdrawn. Curiously enough there is a comma after the word security and there is also a comma after the expression "to be withdrawn". That would seem clearly to indicate that the provision is that if the defendant shows such cause and there has already been an attachment, the attachment shall be withdrawn. But in cases where there has been no attachment if the defendant should show good cause the court may make such Order as it thinks fit. If that is not the proper construction, it would follow that the legislature after having provided the issue of a notice to the defendant to appear and show-cause under Rule 5 has not at all made any provision for the manner in which it is to be dealt with if the defendant should afterwards appear and show good cause". after referring to the decision of the haji Mohamuddin and Company v. The Eastern Japan Trading Company, the learned judge at page 127 observed as follows:"if no such Order is immediately made but only notice is ordered it is difficult to see how an Order that comes to be made later on after notice is returned can be regarded still as an Order made only Rule 5. With all respect, it seems to me that the learned judges entirely overlooked the words in sub- clause (2) of Rule 6, "or make such other Order as it thinks fit". It is clearly not merely an Order of attachment that can be made under Rule 6 but any other Order that the court thinks fit and nevertheless it will still be an Order only under Rule 6 and therefore be appealable under the rules relating to appeals from orders. I may also observe that these observations of the learned judges of the calcutta High Court were really unnecessary for the decision of the case and from what I am able to see, the learned chief Justice referred to this only by way of an apology. I am therefore satisfied that any Order that is made by the court on an application of the plaintiff after return of the notice of the defendant to appear and show-cause why he should not furnish security is an Order under Rule 6 and therefore appealable". ( 6 ) I am completely in agreement with the view expressed by the learned judge in the above quoted passage. ( 6 ) I am completely in agreement with the view expressed by the learned judge in the above quoted passage. As rightly stated by the learned judge, the other decisions which takes a contrary view overlooked the words in sub-clause of Rule 6 "or make such other Order as it thinks fit". ( 7 ) IN the light of the above provision, an Order dismissing an application for attachment before judgment after issuance of notice to the defendant even when there is no conditional Order of attachment under Order 38, Rule 5 would clearly come under the purview of Order 38, Rule 6 (2) and accordingly, it is appealable under Order 43, rule1l (q) of the Code of Civil Procedure. In view of what is stated above, I do not find any ground to interfere with the Order and the civil revision petition is accordingly dismissed. --- *** --- .