HINDCARPETS AND ORS. Vs. O. K. DYES

JUDGEMENT

(1.) On an application under Order 38, Rule 5, C.P.C., the Trial Court has passed an order which is under challenge here by which it is directed hat the appellants should give security by 23m of Dec., 1989, which will be subject to acceptance by the Court. If security to the satisfaction the Court is not furnished by the said date, the property in question would be liable to attachment. The Court further ordered that the matter may be put up on 7th Jan., 1990 for further order.

(2.) According to learned counsel for the appellants, this is an order which falls under Rule 6 of Order 38, C.P.C. and, therefore, it is an appealable order.

(3.) A persual of Order 38, Rule 6, CP.C., however, would indicate that if any of die two preconditions i.e. the party fails to furnish security within time specified or it fails to show cause to the notice issued under Rule 5, is satisfied the court has the power to order attachment of the property or a part, thereof. A persual of this rule, therefore, leaves no room for doubt that specified order of attachment is necessary and merely because the Court finds that specified preconditions are present in a given case, it cannot ipso facto be assumed to be an order of attachment before judgment. It is always open to die Court, even after the party fails to furnish security or to show cause, to extend the time either suo moto or on an application being made in that behalf. The order of the nature passed by die Trial Court, therefore, by itself cannot be termed as an order of attachment before judgment. As a matter of fact 110 attachment in pursuance thereof can be effected until an order directing attachment is made. Under Order 43, Rule 1 (a) C.P.C., only an order passed under Rules 3, 4 or 6 of Order 38, C.P.C. is appealable. Admittedly, the present order is not one under Rules 2 and 3. As we have seen above, die order is also not under Rule 6 as it still requires passing of a final order by the Court for which 7th Jan., 1990 has been fixed.