GOPALDAS HIRALAL MARWADI Vs. MAHADU DAGDU PATIL

JUDGEMENT

(1.) THIS is an appeal by the plaintiff against an order rejecting his application for attachment of certain property belonging to his judgment-debtor. The defendant, who is an agriculturist, had mortgaged some of his property to the plaintiff and a consent decree was taken by the parties on November 22, 1938. The decree directed that the decretal amount was to be paid by installments of Rs. 600 per year and the first installment was to be paid on January 15, 1940; on failure to pay any installment the plaintiff was to apply to the Court under Section 15B of the Dekkhan Agriculturists' Relief Act to realise the installment and on failure to pay any two installments the plaintiff was to realise the whole amount by sale of the mortgaged property ; if there was any deficit, it was to be realised from defendants Nos. 1, 3 and 4 and from the joint family property of defendant No.2. After the decree was taken the plaintiff made the present application on June 30, 1939, by which he sought to attach certain property of the judgment-debtor other than the mortgaged property on the ground that there was likelihood of a deficit occurring after the sale of the mortgaged property, and as the defendant was trying to do away with his other property, it was necessary to protect the plaintiff's interest by attachment of that unmortgaged property of the judgment-debtor. The application appears to have been made under Order XXXVIII, Rule 5, which applies to attachment before judgment. The learned Judge rejected it as not maintainable on the ground that the mortgage-decree had already been passed and the suit having been therefore terminated, no application for attachment before judgment could be filed at that stage. He was also of the opinion that the application was premature as it cannot be filed unless it was found that there was a deficit after the sale of the mortgaged property. It was contended before him that the application was maintainable in any case under the inherent jurisdiction of the Court under Section 151 of the Civil Procedure Code, but that contention was rejected on the ground that it did not follow that the Court had power to grant such attachment after the decree simply because there was no express provision in the Code to that effect.

(2.) THE plaintiff has filed this appeal against that order. On behalf of the respondent Mr. Gajendragadkar has taken a preliminary objection that the appeal does not lie because it is not covered by Order XLIII, Rule 1(q), of the Civil Procedure Code, which provides for an appeal against an order under Rule 2, 3 or 6 of Order XXXVIII. It is contended that the order rejecting the application for attachment before judgment does not fall under Rule 6, because that rule speaks of an order of the Court directing certain property to be attached where the defendant failed to show cause on an application by the plaintiff, and that the rule does not apply to a case where the plaintiff's application for attachment before judgment has been dismissed. It is true that Sub-rule (1) of Rule 6 speaks of an order of the Court directing attachment of the property. Sub-rule (2), however, says that where the defendant shows cause against an application by the plaintiff or furnishes the required security and the property specified has been attached, the Court shall order the attachment to be withdrawn, or make such order as it thinks fit. This Sub-rule would apply where on the application of the plaintiff an order for interim or conditional attachment has been made, and after hearing both sides the Court withdraws the attachment. THE order of the Court, therefore, withdrawing the attachment after the defendant had shown cause would fall under Sub-rule (2) and as such be appealable. That is the effect also of the authorities in Chokhey Lal v. Sri Kishen (1931) 30 A.L.J. 228 and Kedarnath Himatsinghka v. Tejpal Marwari (1934) I.L.R. 14 Pat. 1. It is held in the latter case that there is no appeal where there was no conditional or interim order of attachment, but an appeal would lie where there is such an interim order. In the present case it is clear that there was an order of interim attachment, the defendant showed cause against it, and the order of the learned Judge rejecting the plaintiff's application amounted, therefore, to an order withdrawing the attachment made at the instance of the plaintiff when the application was made. It is thus clear that the present order falls within Sub-rule (2) of Rule 6 . THE preliminary objection, therefore, fails.

(3.) THE order of the lower Court is confirmed and the appeal is dismissed with costs.