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Om Prakash and ors. Vs. Mohammad Ishaq and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All557
AppellantOm Prakash and ors.
RespondentMohammad Ishaq and ors.
Cases ReferredCivil P.C. See Amir Hasan Khan v. Sheo Baksh Singh
Excerpt:
- - the learned advocate for the mortgagees-decree-holders has contended that the learned subordinate judge failed to exercise a jurisdiction vested in him by law. we do not think that the case is one in which the lower court can be considered to have failed to exercise a jurisdiction vested in it by law. there was no failure to exercise its jurisdiction......mortgaged property were pending in the lower court when they made an application under order 38, rule 5, civil p.c., for attachment before judgment, on the allegation that the sale proceeds were likely to prove insufficient for the satisfaction of the mortgage-money and that a deficit of rs. 38,000 was likely to occur. as the mortgaged property had not been sold, no application under order 34, rule 6, civil p.c., was made before the application for attachment, before judgment, already referred to. the decree-holders filed an affidavit in support of their application to the effect that the judgment-debtor was about to dispose of a substantial part, if not the whole, of his other property. the learned subordinate judge directed the mortgagor either to furnish security or to show cause.....
Judgment:

Niamatullah, J.

1. Om Prasad and others, have preferred an appeal from an order passed by the learned Subordinate Judge of Meerut refusing to allow attachment before judgment. They have also applied in revision in view of the contingency that the appeal be held to be incompetent. Om Prasad and others obtained a decree for sale under Order 34, Rules 4 and 5, Civil P.C. The proceedings for sale of the mortgaged property were pending in the lower Court when they made an application under Order 38, Rule 5, Civil P.C., for attachment before judgment, on the allegation that the sale proceeds were likely to prove insufficient for the satisfaction of the mortgage-money and that a deficit of Rs. 38,000 was likely to occur. As the mortgaged property had not been sold, no application under Order 34, Rule 6, Civil P.C., was made before the application for attachment, before judgment, already referred to. The decree-holders filed an affidavit in support of their application to the effect that the judgment-debtor was about to dispose of a substantial part, if not the whole, of his other property. The learned Subordinate Judge directed the mortgagor either to furnish security or to show cause why an order for attachment before judgment should not be passed. It is material to mention that the Court did not direct conditional attachment in terms of Order 38, Rule 5(3). On the date fixed for hearing the mortgagor showed cause. One of the grounds urged by him was that attachment before judgment could not be ordered before an application for a decree over under Order 34, Rule 6, Civil P.C, was made. Some other objections were put forward, but it is not necessary to mention them for the purposes of the appeal and the revision before us. After hearing the mortgagees and the mortgagor on the question whether attachment before judgment should be ordered the learned Subordinate Judge passed the following order:

Let the mortgaged property be sold first. The application under Order 38, Rule 5 is premature.

2. We. may note in passing that the order of the learned Subordinate Judge is extremely meagre. It does not expressly reject the mortgagee's application for attachment before judgment, though there is no doubt that he meant to do so. It is not clear from the aforesaid order as to whether the learned Judge acted under Rule 5 or Rule 6, Order 38, Civil P.C. This is of importance in view of the preliminary objection taken on behalf of the respondents that no appeal lies from the order in question.

3. Under Order 43(1)(q), Civil P.C., no appeal lies except from an order passed under Rules 2, 3 and 6 of Order 38. Rules 2 and 3 admittedly have no application. If the order is substantially one under Rule 6, the appeal before us is competent, otherwise it is not. After carefully examining the provisions of Rules 5 and 6 with reference to the order in question we are of opinion that it cannot be deemed to be one under Rule 6. Rule 5 empowers the Court, in certain circumstances, to direct the defendant either to furnish security or to show cause why he should not furnish security. It also empowers the Court to direct conditional attachment of the whole or any portion of the property specified in the application for attachment before judgment. Rule 6 runs as follows:

(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 order as it thinks fit.

4. Sub-rule (1) contemplates cases in which the Court orders attachment on the defendant: (a) failing to show cause, or (b) failing to furnish the security required. In the case before us, the defendant showed cause in-obedience to the direction of the Court, and no order for attachment before, judgment was passed. It is therefore clear that the order in question is not one under Rule 6(1). Rule 6(2) would have been applicable but for circumstance that no conditional attachment of the whole or any portion of the property was ordered. It seems to us that Sub-rule (2) was not intended to cover cases in which the defendant successfully showed cause against the application praying for attachment before judgment and in which no conditional attachment under Rule 5(3) had been made. Broadly speaking, Rule 6 contemplates cases in which attachment has been either ordered or, if previously made, it has been withdrawn. In this view, no appeal lies under Order 43(1) (q), Civil P.C., where no conditional attachment has been made under Order 38, Rule 5(3) and the application for attachment before judgment ended in dismissal on the defendant showing cause against it. First appeal from Order 50 of 1932 is therefore incompetent.

5. Revision No. 77 of 1932, which is directed against the same order, can succeed if the requirements of Section 115. Civil P.C. are made out. It is not disputed that the learned Subordinate Judge had jurisdiction to entertain an application under Order 38, Rule 5, Civil P.C. It is equally undeniable that, if he had jurisdiction to entertain it and did dispose of it rightly or wrongly, his order cannot be interfered with in revision. The learned advocate for the mortgagees-decree-holders has contended that the learned Subordinate Judge failed to exercise a jurisdiction vested in him by law. The learned advpeate construes the order which we have already quoted in full as if it implies that an application under Order 38, Rule 5, Civil P.C., is not maintainable until the stage at which an application under Order 34, Rule 6, Civil P.C., can be made is reached. We think that this construction is correct. The use of the word 'premature' in. the order can only imply that the application has been made before its proper time. In other words, the application could not be made at the stage at which it was made and would lie after the mortgaged property was sold and the sale proceeds proved to be insufficient and the mortgagee actually applied under Order 34, Rule 6, for a decree over.

6. It is pointed out that an application, under Order 38, Rule 5, Civil P.C., can be made in mortgage-suit before an application under Order 34, Rule 6, is actually made. Rule 5, Order 38 provides that the Court may take action of the kind contemplated by it 'at any stage of a suit.' Proceedings under Order 34, Rule 6, Civil P.C., are proceedings in the mortgage-suit. We assume, for the purpose of this case, that the view taken by the learned Subordinate Judge, namely, that an application under Order 38, Rule 5, cannot be made before an application under Order 34, Rule 6, Civil P.C., is passed, is not correct. But the question is whether the order passed by the learned Subordinate Judge can be interfered with in revision, even though it proceeds on an erroneous view of law. We do not think that the case is one in which the lower Court can be considered to have failed to exercise a jurisdiction vested in it by law. There was no failure to exercise its jurisdiction. The utmost that can be said is that, in deciding the case which it had jurisdiction to decide, it took an erroneous. view on a question of law involved in the case. The learned Subordinate Judge entertained the application for attachment before judgment, issued the preliminary notice, heard the mortgagor, who showed cause against the application, but based his order dismissing the application for attachment before judgment on the mistaken view that an application under Order 38, Rule 5, Civil P.C., cannot be made in a mortgage-suit, until the mortgaged property has been actually sold, the sale proceeds have proved to be insufficient and the mortgagees apply for a decree over under Order 34, Rule 6.

7. For the reasons mentioned above, we are of opinion that the order in question cannot be interfered with by this Court in the exercise of its revisional jurisdiction under Section 115, Civil P.C. See Amir Hasan Khan v. Sheo Baksh Singh (1885) 11 Call 6. We have already expressed the view that no appeal lay from that order. The result is that the first appeal from Order No. 50 of 1932 and Civil Revision No. 77 of 1932 are dismissed with costs.


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