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2009 DIGILAW 882 (PNJ)

Jaggar Singh v. Bhagwant Rai

2009-05-06

A.N.JINDAL

body2009
Judgment A.N.Jindal, J. 1. The trial court declined to attach the property on cause being shown by the defendant and consequently dismissed the application under Order 38 Rule 5 CPC, the appeal against which was preferred and accepted by the learned District Judge, Sangrur. 2. It has been observed in case Saseendran v. Sadanandan, 2004 (1) ICC 306 that dismissal of the application without any attachment already effected, could not be said to be an order under Order 38 Rule 6 (2) CPC, therefore, no appeal is maintainable. The court further observed as under :- " ..... Under Order XXXVIII Rule 6 (2) the Court can also withdraw attachment and make such order as it thinks fit. We are of the view that only in case where attachment is effected or in case where attachment is withdrawn appeal is provided under Order XLIII Rule 1 (q). In this case no attachment has been effected and no order of attachment was withdrawn. Consequently impugned order will not fall under Order XXXVIII Rule 6 and no appeal is maintainable under order XLIII Rule 1 (q). In this connection we may refer to the decision of a learned Single Judge of this Court in Varghese v. Varghese, 2001 (1) KLT 489. Learned Judge held that the order contemplated under sub-rule 6 is one based on the consequences of the failure of the defendants to comply with the Courts directives under sub - rule (5). Counsel appearing for the appellant submitted that this is a case where no objection was filed by the defendant-respondent. Consequently, it is submitted that the order challenged would fall under Order XXXVIII, Rule 5 and not under Rule 6. Counsel submitted that in a case where no objection has been filed then the order would fall under Order XXXVIII Rule 6. We are afraid such a contention cannot be accepted. In this connection we may refer to the decision of a Division Bench of this Court in Pareed Master v. Antony, 1987 (2) KLT 649 wherein also plaintiff in the suit for realisation of money preferred petition under Order XXXVIII Rule 5 CPC for interim attachment. First defendant resisted the application. The trial Court dismissed the application. Plaintiff then preferred appeal before this Court. First defendant resisted the application. The trial Court dismissed the application. Plaintiff then preferred appeal before this Court. Preliminary objection was raised by the defendant stating that appeal is not maintainable under Order XLIII Rule 1 (q) since impugned order was passed under Order XXXVIII Rule 5 CPC. Scope of Order XXXVIII Rule 5 CPC was considered by the Division Bench and the Court has held as follows :- " The impugned order shows that the learned Subordinate Judge has passed the order under Order 38, Rule 5 C.P.C. Order 38, Rule 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 Order 38 Rule 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 Order 38 Rule 6. From a reading of sub - rule (2) of Order 38, Rule 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 Order 38, Rule 6 is not intended to cover cases in which the defendant successfully shows cause against attachment before judgment in which no conditional attachment under Rule 5 (3) had been made. Order 38, Rule 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 Order 38, Rule 5, which is not made appealable under Order 43, Rule 1 (q)." We are in agreement with the reasoning of the Division Bench in Pareed Masters case (1987(2) KLT 649). In the instant case petition was filed under Order 38, Rule 5 C.P.C. Objection was filed by the respondent and the petition was dismissed. Such an order would fall under Order XXXVIII Rule 5 C.P.C. and not under Rule 6. Consequently, this appeal is not maintainable." 3. The present case is on the similar footings. The application was contested by the defendant and the same was dismissed. Such an order would fall under Order XXXVIII Rule 5 C.P.C. and not under Rule 6. Consequently, this appeal is not maintainable." 3. The present case is on the similar footings. The application was contested by the defendant and the same was dismissed. There was no prior attachment which may have been withdrawn. The trial court has simply dismissed the application, therefore, the order clearly falls within the purview of Order 38, Rule 5 C.P.C. which entailed only a revision and not appeal. Learned District Judge has over looked the basic principles of law while deciding the petition and moved on the assumption that the appeal was maintainable under Order 38, Rule 6 CPC which is apparently not correct. Resultantly, I accept the petition and set aside the impugned order dated 20.11.2008 (Annexure P - 4) passed by the learned District Judge, Sangrur. Consequently, order passed by the trial court would stand restored.