MATHUKUTTY MATHEW Vs. SUNNY

JUDGEMENT

(1.) The Registry has declined to number the appeal on the ground that the impugned order is not an appealable order.

(2.) The appellant is the plaintiff in O.S.No.18 of 2014 on the file of the Court of the Subordinate Judge of Kattappana. The respondents are the defendants therein. The suit instituted by the appellant is for return of the advance paid by him to defendants 1 to 4 pursuant to an agreement entered into by them to sell the plaint schedule property. Along with the plaint, the appellant filed I.A.No.367 of 2014 under Order XXXVIII rule 5 of the Code of Civil Procedure, for attachment before judgment of the plaint schedule property. Defendants 1 to 4 entered appearance and filed a counter statement resisting the application. They also contended that they have sold the property to fifth defendant. The trial court after considering the rival contentions, dismissed the application by order passed on 25.08.2014, holding that the appellant has failed to establish his case under Order XXXVIII rule 5. The said order is under challenge in this appeal. The Registry has, as stated earlier, declined to number the appeal on the ground that the impugned order is not an order under rules 2, 3 or 6 of Order XXXVIII which alone are made appealable by virtue of the provisions contained in Order XLIII rule 1(q) of the Code of Civil Procedure.

(3.) Learned counsel appearing for the appellant submitted that notwithstanding the fact that a conditional order of attachment is not passed under rule 5, if ultimately an application for attachment before judgment is dismissed after hearing both sides, it should be deemed to be under Order XXXVIII rule 6 of the Code of Civil Procedure and therefore, an appeal would lie from the said order. Learned counsel also submitted that the mere fact that in the instant case, a conditional order of attachment was not passed and an order directing the defendants to furnish security or show cause why security shall not be furnished was also not passed, is not a reason to hold that the impugned order is not an order under rule 6 of Order XXXVIII of the Code of Civil Procedure.