Jimmi vs Rani Thomas

P.Somarajan, J

The plaintiffs came up aggrieved by the order of non-grant of attachment before judgment after the appearance of the parties. Ext.P4 order was passed after hearing the rival parties without exhausting the normal remedy by way of appeal. But the learned Counsel for the petitioners fairly submitted that no appeal will lie against Ext.P4 order as per the legal position settled by a Division Bench of this Court in Mathukutty Mathew v. Sunny [2015 (1) KLT 620]. But the said decision is rendered under the premise that the impugned order will come under the purview of Rule 5 of Order 38 CPC. A matter which would come under the purview of Rule 6 of Order 38 CPC is appealable under clause 1(q) of Order XLIII CPC. Rule 5 deals with submission of an application for attachment before judgment and power to issue show cause notice to the respondents why he should not furnish security for the amount. By virtue of Sub-Rule (3) of Rule 5 of order 38 CPC the court can order a conditional attachment (ex-parte order) in the meantime against which no provision for appeal incorporated under Order 43 CPC. But there is provision for appeal when the matter is proceeded and decided after the appearance of the opposite party and it will come under the purview of Rule 6 of Order 38 CPC and is an appealable order. Hence reserving the larger remedy available to the parties the present petition is hereby dismissed as there is no scope for exercising the jurisdiction under Article 227 of the Constitution. The first appellate court has to consider the application of Section 14 of the Limitation Act so as to get the period excluded.

Reserving all these rights, the present O.P(C) is hereby dismissed.