T R PUNNAVANAM PILLAI Vs. V MUTHUSWAMI ACHARI

JUDGEMENT

(1.) This revision petition raises the question whether the tools of a goldsmith are exempt from attachment under S. 60(1)(b), C.P.C. Section 60, in enumerating what properties are liable to attachment and sale in execution of decrees, mentions under the proviso to it various classes of properties which are not liable to attachment. I am concerned here with clause (b) of S. 60(1) which reads thus: "tools of artisans, and, where the judgment debtor is an agriculturist, his implements of husbandry and such cattle and seed grain as may, in the opinion of the court, be necessary to enable him to earn his livelihood as such and each portion of agricultural produce or of any class of agricultural produce as may have been declared to be tree from liability under the provisions of the next following section." The petitioner filed a suit in the court of the District Munsif, Tirunelveli, against the respondent on a money claim and applied under O. 38, Rule 5 for attachment before judgment of certain movable properties and tools of the respondent, and, an ad interim attachment of these properties was or4ered when notice was issued to the respondent to show cause why he should not furnish security as required in R. 5 of O. 38. Accordingly four items of movable properties were attached of which one happened to bee a wall clock and the rest were tools used by the respondent in his craft. When the respondent appeared, he filed a counter statement showing cause against his being called upon to furnish security for the suit claim. He also made a prayer In the counter-statement requesting the court to release the properties from interim attachment already effected. On this the District Munsif passed an order holding that the articles attached were not tools of an artisan and were not exempt from attachment. Against this order an appeal was taken to the District Judge Tirunelveli, who took a different view and sat aside the attachment In regard to three items which he held were exempt from attachment under S. 60, C.P.C. being tools of an artisan. Against that order of the District Judge, the present revision petition is filed.

(2.) Two points are raised by Mr. Ratnam, counsel for the petitioner. The first is, that the appeal itself was incompetent as it purported to be an appeal against an order from which no appeal is provided. The second point taken is, a goldsmith is not an artisan and the machines in question which have been attached do not fall within the category of tools and consequently the attachment was valid. Order 43, Rule 1(a) provides for an appeal against orders passed under rules 2, 3 or 6 of O. 38. It is contended that the order in question does not fall under rule 6 of O. 38, but really falls under rule 5 of that order. The order that could be passed by the court under rule 5 is in the nature of a preliminary order and this should be followed by a final order under rule 6 of O. 38. Rule 6 consists of two clauses, (1) and (2). Clause (1) provides for the order to be passed by the court after 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, and, the court orders attachment of the property. This would apply to a case where the plaintiff succeeds in an application for attachment before judgment. Clause (2) provides for a case where the defendant succeeds by showing cause to the satisfaction of the court why security should not be required. But, in cases where the defendant succeeds and the application for attach-merit before judgment taken out by the plaintiff is dismissed under rule (6)(2), it is contended, an appeal would only lie where interim attachment had been effected under R. 5. The scope of Order 38, Rule 6 (2) has been the subject of judicial decisions in the High Court of Calcutta, Patna, Allababad and Bombay, and, the view taken seems to be that in cases where the plaintiff's application for attachment before judgment is dismissed without an interim attachment having been effected, such an order would not fall within the scope of rule 6(2) of Order 38 and would not be appealable. It is enough to mention the following decisions which have taken this view: Hara Gobinda Das v. Bhur and Co., ILR (1955) 1 Cal 478, Kedarnath Himatsingka v. Tejpal Marwari, ILR 14 Pat 1: (AIR 1935 Pat 219), Gopaldas Hiralal v. Mahadu Dagdu, AIR 1943 Bom 24, and Chokey Lal v. Sri Kishen, 1932 All LJ 228: (AIR 1932 All 269). The reasoning behind this view is that the language of rule 6(2) of Order 38 limits appeals to those orders wherein the application of the plaintiff for attachment before judgment is dismissed and under rule (5) ad interim attachment had been effected at the time when the Court ordered notice to issue to the defendant to show cause for his furnishing security. It is unnecessary for the purpose of this proceeding to canvass the correctness of this view though a different view is quite possible.

(3.) Assuming therefore that this view is correct the question for my consideration is whether the order passed in this case by the District Munsif would fall under rule 6(1) of Order 38. Obviously the order passed would not fall under rule 6(2) because the District Munsif did not accept by implication the contention of the defendant that he was not liable to give security for the suit claim. This is not, therefore, a case where the plaintiff's application for attachment was dismissed. But Mr. Ratnam contends that equally the order passed by the District Munsif does Met fall under rule 6(1) because the original application for attachment is still kept pending and has not been disposed of by the District Munsif. He refers to I. A. No. 484 of 1961, the application preferred under Order 38, rule (5). Nothing more remains to he done under this application except to confirm the interim attachment. In deciding the nature of the order passed by the District Munsif in I. A. No. 534 of 1961, which is also the counter-statement tied 'by the defendant in I. A. No. 484 of 1961, one has to look to the substance of the contentions raised by the defendant rather than the form of the order passed by the District Munsif. I. A. No. 534 of 1961 served both as a counter-statement to I. A. No. 484 of 1961 and also as an independent application for raising attachment effected in pursuance of the order already made by the District Munsif under rule 5 of Order 38. This would be clear from the fact that in the counter statement, besides asking for raising the attachment on the ground that the properties were exempt from attachment, contentions are also raised denying the allegations made in the affidavit in support of I. A. No. 484 of 1961 filed by the plaintiff which justified the passing of an order of attachment before judgment.