T.C. Raghavan, J.
1. The respondent in I. A. No. 4754 of 1961, on the file of the Court of the Additional Munsiff, Vaikom is the Civil Revision petitioner. The respondents before me filed O. S. No. 106 of 1961 for recovery of 1024 standard paras of paddy and 93 1/2 bundles of hay in kind or their value in money. They also filed I. A. No. 4754 of 1961 for attachment before judgment of a quantity of paddy in the possession of the Civil Revision Petitioner. The lower Court directed interim attachment and after hearing parties ordered the release of 400 paras of paddy to the plaintiffs. The lower court also directed that if the petitioner-defendant so desired, he could pay the value of the paddy at nirak rate and get the paddy released from attachment. It further directed the petitioner to file a statement showing the actual quantity of paddy required for cultivation purposes and also for the maintenance of himself, his wife and his minor dependents, observing that appropriate orders would he passed on that, statement on hearing both sides. The revision petition is directed against the aforesaid order.
2. The learned counsel of the respondents has raised a preliminary objection to the maintainability of the Civil Revision Petition. He argues that the order sought to be revised is one under Order XXXVIII, Rule 6 and therefore, appealable under Order XLIII. Rule 1 (q) to the appropriate Court as laid down in Section 106 and not to this Court. Therefore, according to him this revision petition is incompetent. The learned advocate of the petitioner meets this contention saying that the order does not clearly appear to be one under Order XXXVIII Rule 6 but can very well he construed as one under Order XXXVIII Rule 5. He argues further that in such cases of doubt the benefit of the doubt should be given to the petitioner and the Civil Revision Petition should be allowed to be proceeded with. In support of this argument he invites my attention to a Division Bench ruling of the Calcutta High Court in Sourendra Nath Mitra v. Tarubala Dasi, AIR 1927 Cal 354, wherein it was held that, if on a question which related to the competency of an appeal on a ground, such as that the Order appealed against was not one under Rule 6, a reasonable doubt arose, the benefit of that doubt should go to the appellant, in that case the preliminary objection raised was that the order under appeal was not one passed under Rules 2 or 3 or 6 of Order XXXVIII and therefore not appealable and Mukerji, J., speaking for the Court, made the aforesaid observation holding that the appeal was competent as there was a reasonable doubt regarding the competency or otherwise of the appeal and in such cases the benefit of such doubt should be given to the appellant. In the present case, from the wording of the order, it is not quite clear whether the order would fall under Rule 5 or Rule 6 of Order XXXVIII and therefore, I am inclined to adopt the reasoning of Mukherji, J., in the Calcutta decision and hold that, in the circumstances of the case and to meet the ends of justice, the Civil Revision Petition should be allowed to be proceeded with.
3. There is yet another way of looking at the question. Section 115 of the Code lays down that the High Court may call for the record of any case, decided by a subordinate Court, in which no appeal lies to the High Court, so that the provision for an appeal, to another subordinate court, as in the present case does not oust the High Court's power of revision under this section. This view, I find has been ex-pressed by Raman Nayar, J., also in Martha Nicholas Yesamma, 1961 Ker LT 927.
4. The learned advocate of the respondents then, contends that even if the order falls under Order XXXVIII, Rule 5, even then the order is not without jurisdiction, but only irregular and therefore not liable to be vacated under Section 115 of the Code of Civil Procedure. He contends that the jurisdiction to attach is derived from Section 94 of the Code and the failure to follow the procedure laid down by Order XXXVIII, Rule 5 is only an irregularity, which does not make the attachment ab initio void or ultra vires, as it only lays down the manner in which, the Court's jurisdiction is to. be exercised and it would not affect the, validity of the Court's act. as the Court's jurisdiction is derived from a source independent of this provision. He cites a Division Bench ruling of the Nagpur High Court in Dhian Singh v. Secretary of State, AIR 1945 Nag 97 in support of this contention. Even accepting this contention, such irregular exercise of the jurisdiction falls within the revisional powers of the High Court under Clause (c) of Section 115 of the Code, as it is an illegal exercise of the jurisdiction of the 16wer Court or an exercise of its jurisdiction with material irregularity.
5. On merits the learned advocate. Of the petitioner, complains that the learned Munsif erred in ordering interim attachment without notice to the petitioner. Order XXXVIII. Rule 5 lays down the procedure for attachment before judgment. Sub-rule 1. thereof enacts that at any stage of the suit, if the Court is satisfied that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of any part of his property or is about to remove the property from the local limits of the jurisdiction of the Court, the. Court may direct him either is furnish Security, in such sum as may be specified, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or to appear and show cause why he Should not furnish security.
Sub-rule (3) provides that the Court may also in the same order direct the conditional attachment of the whole or any portion of the property specified by the plaintiff. Rule, 6 lays down the procedure for passing orders after hearing the parties and it provides that, where the defendant fails to show cause why he should not furnish security or falls to furnish the security reiquired, the Court may order. that the property specified be attached and. where the defendant shows cause or furnishes the required security, the Court shall order the conditional attachment, if any, to be withdrawn, or make such other order as it thinks fit.
6. These provisions make it abundantly clear that any property of the defendant may be attached before judgment only if he fails to show cause why he should not furnish security or fails to furnish the security' required. If, on the other hand, he shows sufficient cause why he should not furnish security, or if he furnishes security, attachment shall not be ordered and if there is already a conditional attachment under Rule 5, that has to be vacated. The only attachment that is contemplated by Rule 5 by Rule 5 is the conditional attachment by the same order directing-the defendant to furnish security or to appear and show cause why he should not furnish security. It does not appear in this case that the defendant was asked to show cause why he should not furnish security, nor was he directed to furnish security, on failure of compliance of which alone attachment could have been ordered. As a matter of fact, in paragraph 8 of the counter-affidavit, the defendant states that he is prepared to furnish sufficient security to the satisfaction of the lower court. This offer does not appear to have even been considered by the lower court and according to me the lower court was bound to consider the question of security and it is only on failure to furnish security that attachment could have been ordered.
7. In the above view I will have adopted the course followed by a Division Bench of the Calcutta High Court in Badri Prasad Jhunjhunwalla v. Babulal Jhunjhunwalla, AIR 195Q Cal 368. Sarkar J. delivering the judgment of the court in that case observed that the order passed without complying with the provisions of Rules 5 and 6 of Order XXXVIII amounted to an irregularity, though the order was not ultra vires or void ab initio and the learned Judges therefore remitted the case to the lower court for disposal after giving proper notice in accordance with the rules, retaining the conditional attachment pending such fresh disposal. But in this case for adopting that course I find another difficulty and that is that the property attached is agricultural produce, namely paddy, which is not attachable prior to decree under Order XXXVIII, Rule 12. This question has been discussed by the learned Munsiff in paragraph 2 of his judgment.
The learned Munsiff observes that Order 38, Rule 12 prohibits attachment of agricultural produce, in execution of a decree. Again, according to him, the agricultural produce, that is exempted from attachment under the said Rule, is only that part of the produce which has become the property of the agriculturist and which is also not attachable under Sections 60 and 61 of the Code of Civil Procedure. I am afraid, the learned Munsiff is grievously wrong in this view. Order XXXVIII deals with arrest before judgment and attachment before judgment and Rule 12 thereof exempts from attachment agricultural produce in the possession of an agriculturist. The heading of the Order clearly indicates that the Order relates only to attachment and arrest before judgment. Moreover, the marginal note to Rule 12 reads: 'Agricultural produce not attachable before judgment'.
I fail to see how and on what ground the learned Munsiff took the view that Order XXXVIII, Rule 12 prohibited only attachment in execution of a decree and not attachment prior to decree. Sections 60 and 61 deal with attachment in execution. Proviso (b) to Section 60(1) exempts from attachment in execution, where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seedgrain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as an agriculturist, and such portion of agricultural produce as may have been declared to be free from liability under the provisions of the next following section.
Section 61 provides for partial exemption from attachment in execution of certain agricultural produce as may appear to the State Government to be necessary for the purpose of providing, until the next harvest, for the due cultivation of the land and for the support of the judgment-debtor and his family in the case of all agriculturist-judgment-debtors or any class of agriculturist-judgment-debtors.
The learned Munsiff is of course light when he says that the word 'agriculturist' must be interpreted in the same sense in Sections 60 and 61 as in Order XXXVIII, Rule 12. In a recent decision of the Supreme Court in Appasaheb Tuljaram Desai v. Bhalachandra Vithalrao Thube, AIR 1961 SC 589, Imam and Rakhubar Dayal JJ. the majority who constituted the Court, held that the word 'agriculturist' in Proviso (b) of Section 60(1) applied to a person who was really dependent for his living on tilling the soil and unable to maintain himself otherwise. Therefore, the term 'agriculturist', which has been interpreted by the Supreme Court, in relation to Section 60, as a person who depends for his living on filling the soil and is unable to maintain himself otherwise, may have the same meaning under Order XXXVIII, Rule 12 also. But the question before me is not whether the term 'agriculturist' means the same in Sections 60 and 61 and Order XXXVIII, Rule 12 or not. The question is as to what is exempted from attachment under Sections 60 and 61 on the one hand and under Order XXXVIII, Rule 12 on the other, that is, regarding the scope of the exemption from attachment before judgment.
It is clear from a perusal of Sections 60 and 61 that exemption from attachment under those sections is only partial, that is, under Section 60 the implements of husbandry and such cattle and seed-grain as, in the opinion of the Court, may be necessary to enable the agriculturist-judgment-debtor to earn his livelihood and under Section 61 such portion of the agricultural produce or of any class of agricultural produce, as may appear to the State Government to be necessary for the purpose of providing, until the next harvest, for the due cultivation of the land and for the support of the judgment-debtor and his family. But under Order XXXVIII, Rule 12 the exemption from attachment before judgment is not restricted or confined to any portion of the agricultural produce. The Rule lays, down, that the provisions of Order XXXVIII shall not be deemed to authorise the plaintiff to apply for attachment of any agricultural produce in the possession of the agriculturist or to empower the Court to order the attachment of such produce.
Therefore, once it is proved that the defendant is an agriculturist, which term may mean the same as under Sections 60 and 61, the plaintiff is debarred from applying for attachment before judgment of any agricultural produce in the possession of the defendant, though the produce heed not necessarily be the defendant's or it need not even be necessary for The maintenance of himself and his family; nor is the Court competent to order the attachment or production, of such agricultural produce. The Rule provides for complete exemption from attachment before judgment of all agricultural produce in the possession of an agriculturist. The reason behind this Rule is quite intelligible and that is that, if in execution of a decree against the agriculturist-judgment-debtor the agricultural implements and a portion of the agricultural produce in his hands are exempted from attachment, in the case of an attachment before judgment, where there is the possibility of no decree being passed against him, the exemption has to be wider and consequently no part of the agricultural produce in his possession should be attached.
8. Therefore the crucial question to be considered in this case is whether the defendant is an agriculturist or not. He has claimed that he is an agriculturist in his counter-affidavit. No reply affidavit appears to have been tiled disputing this allegation and the lower court has also proceeded on the basis that the defendant is an agriculturist. But the lower court has held that under Order XXXVIII, Rule 12 all agricultural producers not exempted from attachment, but only a portion thereof, which view, as I have already held, is erroneous. Therefore I hold that the defendant is an agriculturist, as this fact was not disputed in the lower court.
9. The learned Munsiff has adverted to some provisions of Kerala Act IV of 1961; but in the view I have already taken, I do not think it is necessary for me to consider that aspect. Moreover, the learned advocate of the respondents pray that this Court may not make any pronouncement on that question in the present case. As a ruling on the question is not necessary for the disposal of this case, I refrain from making any pronouncement thereon.
10. In the result I set aside the order of the lower court and raise the attachment. The respondents will pay the costs of the petitioner in this court. I may also observe that the respondents are at liberty to apply for attachment before judgment Of other properties of the defendant, which are not exempted from attachment before judgment and the lower court may consider the same after complying with the provisions of the Code as indicated in this judgment