Smt. Vidhya Devi vs Shri Harish Chander and Another

M. Jalal-Ud-Din, J.—This revision petition is directed against the order dated 10th of August 1967 passed by the learned District Judge,

Jammu, whereby he has set aside the order of the trial Court in proceedings relating to attachment before judgment.

It appears that in a suit for the recovery of arrears of rent, an application for attachment before judgment supported by an affidavit was also

moved in the trial Court of the Sub Registrar Munsiff, Jammu. It was alleged in the said application that the Defendants had no immovable property

within the local limits of the jurisdiction of the Court and that they had closed their business and locked the premises and had, in fact, left the State.

That the Defendants with intent to obstruct or delay the execution of the decree that may be passed against them were about to dispose of their

part of the property, and in these circumstances it was prayed that a warrant of attachment before judgment be issued against them.

The trial Court, passed an order of attachment before judgment and directed that if the Defendants failed to furnish security in terms of the suit

money and costs thereof, attachment should be made forthwith. The said order of the Court was executed. Against this order the Defendants

Respondents went up in appeal before the District Judge, Jammu. The learned District Judge by his order set aside the order of the Court below

and remanded the case (relating to attachment before judgment) for fresh hearing. The learned District Judge observed in his order that the

allegations made in the application for attachment before judgment were vague and that no show cause notice was served upon the Defendants.

Therefore, the order passed by the trial Court was not sustainable in the eye of law. Against this order the Plaintiff applicant has come up in

revision before this Court.

I have heard the arguments in the case and have gone through the file.

It has been vigorously contended by the learned Counsel appearing on behalf of the applicant that the order passed by the Court below was not

appealable as the said order was passed under Order 38, Rule 5 CPC and, therefore, the District Judge had no jurisdiction to hear the appeal. In

this way the order passed in appeal was illegal and without jurisdiction. Secondly, even on a question of fact and law the case of the Plaintiff was

attracted by the provisions of Order 38, Rule 5, CPC and the trial Court had passed an order quite in accordance with law. The observations of

the learned District Judge, that the application contained vague allegations and that no show cause notice was issued to the Defendants, were not

legally sound.

As against this, the learned Counsel appearing on behalf of the Defendants Respondents has supported the order passed by the learned District

Judge in appeal. He has, on the one hand, submitted that the order of the trial Court was in essence one passed under Rule 6 and not under Rule 5

and therefore the order was appealable, and because the order of the trial Court had some legal infirmities, therefore, the appellate Court had

rightly set aside the same. He has also raised some preliminary objections (1) that the revision was incompetent inasmuch as the remand order of

the District Judge was one passed under Order 41, Rule 23 and was therefore appealable. Secondly that the original suit out of which the present

proceedings have arisen has now been dismissed for default by the trial Court and, therefore, the attachment had ceased. The revision had,

therefore, become infructuous.

I will first of all deal with the preliminary objections raised before me. The order of remand, purported to have been passed by the learned

District Judge, does not at all fall within the ambit of Order 41, Rule 23 of the Code of Civil Procedure, but it falls u/s 151 of Code of Civil

Procedure, and is not, therefore, appealable but revisable. Secondly, it is conceded before me that an application for restoration of the suit has

already been made in the trial Court and is pending disposal in that Court. When and if that application is allowed, and the suit is restored to its

original numbers, naturally all the proceedings taken in the suit will be revived and the parties will be relegated to the same position as they

occupied before the suit was dismissed for default. Therefore, the revision in my opinion has not become infructuous. I, therefore, overrule the

preliminary objections raised in the case.

Now, on a careful consideration of the language employed in Order 38, Rule 5 of the CPC it should become abundantly clear that the

application for attachment before judgment made by the Plaintiff in the trial Court is precisely covered by its provisions and the application does

not contain vague allegations. Order 38, Rule 5 provides; that where at any stage of the suit, the Court is satisfied that a Defendant with intent to

obstruct or delay the execution of a 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 the Defendant either to

furnish security within the specified time in such sum as may be specified in the order or to produce...or to appear and show cause why he should

not furnish security. The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.

Thus it is clear that on being satisfied of the existence of the conditions sufficient to pass an order for attachment before judgment it is in the

power of the Court to call upon the Defendant to furnish security and the Court may also pass an order of conditional attachment under Clause 3

of Rule 5. Sub-clause (b) of Clause (I) of Rule 5 gives a discretion to the Court to issue notice to the Defendant to show cause as to why the

security may not be furnished by him. According to the language of the Sub-clause no, legal obligation is cast on the Court to issue notice of show

cause in the first instance as the Sub-clause gives an option to the Court either to ask the Defendant to furnish security, or to, appear and show

cause as to why such security be not furnished. This discretion of option and also the discretion to pass a conditional order of attachment is to be

exercised according to the exigencies of the situation. There may be cases where issuing of a notice to show cause in the first instance within a

specified time to the Defendant may frustrate the very object for which an application is made under Order 38, Rule 5. By the time a notice of

show cause is served a clever Defendant may try to evade the order of the Court and thus defeat the very object for which the notice is being sent

to him. It is, therefore, that discretionary powers have been given to the Courts to proceed either way and also to pass conditional orders of

attachment under Rule 5.

I am, therefore, of the view that the trial Court has not misdirected itself and the order passed by it does not suffer from any serious legal

infirmity although the order, it appears, is not happily worded. The authorities cited by the learned Counsel for the Respondents deal with cases

where there was no order of conditional attachment. It was held on the Interpretation of Order 38, Rule 5 that a Court could not pass an order of

unconditional attachment under Rule 5 and the proceedings taken in pursuance of such a direction were ultra vires: Vide Sri Krishna Gupta and

Another Vs. Shri Ram Babu and Others, . Here in the instant case no doubt the trial Court has passed an irregular order but the same cannot be

said to be clothed with any illegality. The Court has observed that in case the Defendants fail to furnish security to the extent of the suit money,

attachment should be made forthwith. The order is undoubtedly a conditional order and therefore, Anand Kumar Bindal Vs. Employees' State

Insurance Corporation and Others, cited by the counsel for the Respondents, has got no application to the facts of the present case.

Again, there is much force in the contention of the learned Counsel for the applicant that the District Judge, Jammu, had no jurisdiction to hear

the appeal against the order of the trial Court because the order was not appealable. Order 43, Rule 1 Sub-clause (q) makes an order passed

under Rule 6 of Order 38, appealable. But no appeal is provided against an order passed under Rule 5. The order purported to have been passed

by the trial Court appears to have been passed under Rule 5 and not under Rule 6, therefore, the order passed by the learned District Judge in

appeal is beyond jurisdiction, as no appeal lay to it.

The result is that this revision is allowed, the order of the learned District Judge is set aside and the order of the trial Court is restored.

However, the Defendants will be at liberty to approach the trial Court with their objections regarding the order of attachment and the trial Court

after considering the objections and hearing the parties will pass an appropriate order according to law.