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Mahendra NaraIn Saha and ors. Vs. Gurudas Bairagi and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in33Ind.Cas.689
AppellantMahendra NaraIn Saha and ors.
RespondentGurudas Bairagi and anr.
Excerpt:
civil procedure code (act v of 1908), order xxxviii rules 5 and 6, order xliii, rule 1, clause (q) - appeal from order dismissing application for attachment before judgment, competency of--conditional attachment. - .....rule 6 of order xxxviii of the code of civil procedure, and is, consequently, open to appeal under rule 1, clause (q), of order xliii of the code. the respondents, on the other hand, urge that the order could not possibly have been made under rule 6, that it was probably made under rule 5, and that, treated as an order under rule 5, it is not liable to be challenged fay way of appeal.3. to explain the relative situations of the parties, it is necessary to recapitulate briefly the course of events in the court below. the suit was instituted on the 24th march 1915. on the 3rd may 1915, the plaintiffs made an application for attachment before judgment under rule 5 of order xxxviii of the code. thereupon, the court directed the issue of notice upon the defendants to show cause why an.....
Judgment:

Asutosh Mookerjee, J.

1. This appeal is directed against an order, whereby the Subordinate Judge has in substance dismissed an application for attachment before judgment. The respondents have taken a preliminary, objection to the competency of the appeal.

2. The appellants contend that the order must be deemed to have been made under Rule 6 of Order XXXVIII of the Code of Civil Procedure, and is, consequently, open to appeal under Rule 1, Clause (q), of Order XLIII of the Code. The respondents, on the other hand, urge that the order could not possibly have been made under Rule 6, that it was probably made under Rule 5, and that, treated as an order under Rule 5, it is not liable to be challenged fay way of appeal.

3. To explain the relative situations of the parties, it is necessary to recapitulate briefly the course of events in the Court below. The suit was instituted on the 24th March 1915. On the 3rd May 1915, the plaintiffs made an application for attachment before judgment under Rule 5 of Order XXXVIII of the Code. Thereupon, the Court directed the issue of notice upon the defendants to show cause why an attachment should not issue before judgment, and at the same time directed the defendants not to part with the properties in any way. It is plain that this was not in strict accordance with the provisions of the Code, which were overlooked by the Court and the legal advisers of the parties. The order to be made in such circumstances will be found in Form No. 5 of Appendix F to the Code of Civil Procedure. That form plainly indicates that in a proceeding under Rule 5, where 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, is about to dispose of the whole or any part of his property or 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 one of two things to be done, namely, either (a) 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 (b) to appear and show cause why he should not furnish security. The Court may also in the order direct a conditional attachment of the whole or any portion of the property required to be attached.

4. In the case now before us, the Court did not make an ex parte order upon the defendants to furnish security; nor did the Court direct them to appear and show cause why they should not furnish security. It is also plain that the Court did not direct the conditional attachment of the whole or any portion of the property required to be attached. We have, no doubt, been pressed by the appellants to take the view that the direction upon the defendants not to part with the properties in any way was in essence an order of conditional attachment within the meaning of Clause (3) of Rule 5; but we are not prepared to accept this contention as well founded. If the defendants had disobeyed the direction of the Court, they might possibly have rendered themselves liable to punishment for contempt of Court; but a transferee from them would not have been affected as he would have been, if there had been a conditional attachment of the property. We must take it, therefore, that the order as framed was not in accordance with Rule 5.

5. The defendants, however, did appear and show cause on the 29th May 1915. On the 21st June 1915, both parties were heard and the affidavits filed by theft were considered. The Court thereupon expressed the opinion that sufficient cause had not been made out for attachment, and dismissed the application of the plaintiffs. To enable the appellants to support this appeal, it is necessary for them to establish that this is an order under Rule 6 of Order XXXVIII, Civil Procedure Code. Now, the first Clause of Rule 6 provides that '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.' The order contemplated by this clause of Rule 6 is clearly an order of attachment. No such order admittedly has been made in this case. Clause (2) of Rule 6 provides that where the defendant shows such cause' [that is, shows cause, if called upon to do so, under Clause () of Rule 5] 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.' It is plain that the attachment which the Court is thus directed to withdraw, is a conditional attachment made in terms of Clause 3 of Rule 5. No such order of withdrawal was made in this case and none, indeed, could have been made, as no attachment had been ordered. The position, in substance, is that an application for attachment before judgment has been made under Rule 5; the Court has heard the defendants and has dismissed the application. The parties never reached the stage contemplated by Rule 6; consequently no appeal lies under Order XLIII, Rule 1, Clause (q), Civil Procedure Code.

6. This appeal is, therefore, dismissed with costs; the hearing fee is assessed at three gold mohurs.


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