Shri Prem Singh vs Bank of India and Others

J.V. Gupta, J.—This revision petition arises out of an application under Order 38, rule 5 of the Code of Civil Procedure, filed on behalf of the defendant-petitioner in the trial Court, which was dismissed by the impugned order dated 19th of March, 1980.

A preliminary objection has been raised on behalf of the plaintiff respondent that this revision petition is not competent as the impugned order is appealable under Order 43, rule 1(q) of the Code Civil Procedure. According to the learned counsel, the impugned order falls under Order 36, sub-rule (2) bf rule 6 of the Code of Civil Procedure, which provides:-

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security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such order as it thinks fit.

In support of this contention, he referred to T.R. Punnavanam Pillai Vs. V. Muthuswami Achari,

In reply to this objection, the learned counsel for the petitioner contended that the impugned order is covered under Order 38, rule 5 of the CPC and not under rule 6 as contended by the respondents. In support of his contention, he referred to AIR 1936 33 (Lahore)

I have heard the learned counsel for the parties at a great length. The admitted facts are that on 19th of February, 1979, along with the filing of the suit, an application under Order 38, rule 5, Code of Civil Procedure, was also made by the plaintiff respondent. An ex-parte order was passed and the defendant was called upon to show cause why he should not furnish security. The next date fixed was 12th of March, 1979. On 26th of March, 1979, the trial Court passed an order that the truck No. 5475 standing in the police station be given on Supardari to Rajinder Kumar who had executed Supardariname on 23rd of February, 1979. From that order, it appears that the defendant-petitioner never objected to the attachment of the said truck. The only objection was as to the person to whom it should be handed over as Supardar. Later, on 30th of May, 1979, the defendant filed an application purporting to be under Order 28, rule 5, of CPC in which it was stated that the petitioner is prepared to furnish security and that truck be released from attachment. This application of the defendant-petitioner was dismissed by the impugned order dated 19th of March, 1980. In my view, this order clearly falls under sub-rule (2) of rule 5 of Order 38 of the Code of Civil Procedure. It is not disputed that if this order falls under the said sub-rule, then it is appealable under Order 43, rule 1(q) of the Code of Civil Procedure. Section 115 of the said Code clearly provides that the High Court shall not, under this Section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. If once it is held that the order was appealable then this revision petition is liable to be dismissed as not maintainable. The authorities relied upon by the learned counsel for the petitioner are clearly distinguishable. In both the cases, i.e. Smt. Vidhya Devi''s case (supra) and Messrs Madan Theatres case (supra), an order under Order, 38, rule 5 Code of Civil Procedure, was passed without issuing any show-cause notice to the defendant. Admittedly, in the present case, notice to show cause was issued to the defendant on 22nd February, 1979 when an ex-parte order was passed under Order 38, rule 5 Code of Civil Procedure. But the defendant failed to appear on the date fixed i.e., 12th of March, 1979. Reply was filed subsequently, to the application which was disposed of by the Court, vide its order dated 26th of March, 1979, which order was never challenged by the defendant-petitioner. The subsequent application filed on 30th of May, 1979, is clearly contemplated under Order 38, rule 6(2), Code of Civil Procedure. In this view of the matter, the preliminary objection raised on behalf of the respondents is accepted and the petition is dismissed with costs, as being not maintainable.