Lancelot Sanderson, C.J.
1. This is an appeal from an order of my learned brother Mr. Justice Buckland, against the defendants in a suit. The suit was brought for a balance alleged to be due in respect of certain drafts accepted by the defendants in consideration of certain goods which had been supplied by the plaintiffs to the defendants. The plaintiffs made an application to the learned Judge, based upon an a davit whereby the plaintiffs alleged that the defendants were disposing of their stock-in-trade with a view to obstruct or delay the execution of any decree which might be passed against them, and the learned Judge, in the first instance, made an order, dated the 8th May 1922. By that order the defendants were called upon to show cause why they should not furnish security for the claim and costs of the plaintiffs or why, in default, their stock-in-trade at 55-11, Canning Street, should not be attached until the final determination of the suit or until the further order of the Court, the plaintiffs, by their Advocate, undertaking to indemnify the defendants from any damage which they might sustain by reason of the ad interim injunction thereinafter mentioned.
2. The defendants appeared and put in affidavits and the matter was heard by the learned Judge and then he made the following order on the 25th May 1922 : 'It is ordered that the defendant firm do at once give security to the satisfaction of the Registrar of this Court to the extent of the plaintiff firm's claim and costs in this suit and that in default thereof a writ of attachment do issue out of, and under the seal of, this Court commanding the Sheriff of Calcutta to attach until the final determination of this suit or until the further order of this Court the stock-in trade of the defendant firm lying at No. 55-11, Canning Street.
3. The learned Counsel for the plaintiffs, who are the respondents in this Court, has raised the preliminary point that there is no appeal from this order. In my judgment, having regard to the form in which the order is drawn, there is an appeal from this order. The order in its present form could not have been made by the learned Judge without having recourse to Rule 6, Order XXXVIII of the Code of Civil Procedure. By Order XLIII, Rule 1, it is provided that an appeal shall lie from the following orders under the provisions of Section 104 and Clause (q) is: ' an order under Rule 2, Rule 3 or Rule 6 of Order XXXVIII.' It is clear, therefore, that the Code provides that there should be an appeal where an order is made by a Court under Order XXXVIII, Rule 6, attaching the property of one of the parties, and in my judgment, it may be said that that is a judgment within the meaning of Clause 15 of the Letters Patent from which an appeal lies to this Court. But it is necessary to examine the order more closely. The first order of the learned Judge may be divided into two parts. The defendants, in the first instance, where called upon to show cause why they should not furnish security and as regards this matter the final order of the learned Judge was, that they were directed to give security at once to the satisfaction of the Registrar. As far as that part of the order is concerned, in my judgment, it was made under the provisions of Order XXXVIII, Rule 5. That order provides that in certain events and under certain conditions the Court may direct which defendant within a time to be fixed by it either to furnish security in such sum as may be specified In the order or to appear and show cause why he should not furnish security. In my judgment, Order XXXVIII, Rule 5 gives the Court jurisdiction to call upon the defendant to show cause why he should not furnish security and if the defendant fails to show cause to the satisfaction of the Court, the Court has jurisdiction under that rule to direct him to furnish security within the time specified by the Court. Then, Rule 6 provides that 'where the defendant fails to show cause why he should net 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.' It seems to me that the only power which the Court has under that rule is to make an order for the attachment of the property. It is Rule 5, which gives the Court power to direct security to be given and it is Rule 6, which gives the Court power to attach the property and it seems to me that this interpretation is borne out by the form which is to be found in First Schedule, Appendix F, No. 7 of the Civil Procedure Code. It seems to me, therefore, that it was intended by those who framed the Code that, where the Court confines its order to a direction that the defendant should give security within a fixed time, there should be no appeal from that order inasmuch as Order XXXVIII, Rule 5, is omitted from the provisions of Order XLIII, Rule 1. But where the Court makes an order that the defendant's property should be attached before judgment, the Code provided that there should be an appeal inasmuch as Order XXXVIII, Rule 6, is specifically mentioned in Order XLIII, Rule 1. Consequently, in my judgment, taking the provisions of the Code of Civil Procedure as a guide, it may reasonably be held that the order in so far as it directs the attachment of the property, is a judgment and is appealable, but in so far as it directs security to be furnished, it is not appealable.
4. In this case, the defendants have complied with the order that they should deposit security, and the result is that the other portion of the order, which directs the attachment of the property of the defendants, is infructuous and although it is, in my judgment, an appealable order, we are entitled to take the facts into consideration; and when it appears upon such consideration that the order as to the attachment of the property is infructuous, inasmuch as the order for the security has been complied with, in my judgment, there is no course open to this Court except to dismiss the appeal.
5. The appeal is, therefore, dismissed with costs.
6. I agree Rule 6, of Order XXXVIII, empowers the Court, in the events stated, to direct the attachment of the defendant's property, The power given by Rule 5, to make an alternative order directing the defendant within a specified time to furnish security or to appear and show cause why he should not furnish security carries with it as an incident the power, after hearing the defendant, to confirm the order that security be furnished. Under its general powers the Court may then, if necessary, extend the time for the furnishing of the security.
7. Where the defendant fails to show cause why he should not furnish security, the Court may under Rule 5, direct finally that security be furnished or in the alternative, under Rule 6, direct the attachment of the defendant's property. The power of attachment also exists if the required security is not furnished.
8. The provisions of the Code do not, in my opinion, contemplate an appeal from an order directing the defendant to furnish security. Rule 5 is omitted from Order XLIII, Rule 1, Clause (q). An appeal lies from an order of attachment made under Rule 6.
9. In the present case the order may be appealable so far as it is a conditional order of attachment, but such an appeal would be necessarily infructuous, because, security having in fact been furnished, there is no operative order of attachment and the remainder of the order is merely an order for the furnishing of security not appealable either under the Code or as a judgment under the Letters Patent.
10. I agree with my Lord that the appeal should be dismissed.