HARA GOBINDA DAS Vs. BHUR AND COMPANY

JUDGEMENT

(1.) This appeal at the instance of the Plaintiff and it arises out of a suit for recovery of money under three heads: (i) on account of certain alleged outstanding mils for work done by the Plaintiff under an alleged contract between him and the Defendant; (ii) on account of certain security deposits made by the Plaintiff with the Defendant in accordance with the said contract between them; and (iii) on account of interest on the alleged outstanding bills of the Plaintiff. The claim in the suit was to the tune of Rs. 41,995-14-6 pies. The suit was filed on December 12, 1952; and, immediately thereafter, i.e., on December 13, 1952, the Plaintiff filed an application praying for relief against the Defendant under Order XXXVIII, Rule 5, of the Code of Civil Procedure. This application was eventually dismissed by the learned Subordinate Judge and the said order of dismissal was affirmed by this Court in appeal.

(2.) After the dismissal of the appeal on February 13, 1953, the case proceeded for some time in the trial court and then the Plaintiff made a second application for attachment before judgment of certain bills of the Defendant, alleged to have been outstanding from the Government. This application was made an April 1, 1953, and upon it the learned Subordinate Judge issued a notice upon the Defendant to show cause why the prayer, made by the Plaintiff, should not be granted. The Plaintiff's, application was eventually heard by the learned Subordinate Judge on April 18, 1953, and, by his order of that date, the learned Subordinate Judge was pleased to dismiss the Plaintiff's application. Against this order of dismissal the present appeal has been filed by the Plaintiff.

(3.) At the hearing of this appeal, a preliminary objection was taken by the Defendant Respondent's Learned Counsel Mr. Niren De. The preliminary objection was founded on the fact that there was, in the present case, no conditional order of attachment, as contemplated by Order XXXVIII, Rule 5, of the Code of Civil Procedure Code, and that, accordingly, the order of the learned Subordinate Judge, dismissing the Plaintiff's application under Order XXXVIII, Rule 5, could not be regarded as an order under Order XXXVIII, Rule 6(2). It was also quite clear, so submitted Mr. De, that the said order, being an order refusing the Plaintiff's prayer under Order XXXVIII, Rule 5, could not come within Sub-rule (1) of Rule 6, Order XXXVIII. In, these circumstances. De contended that this was not an order under Order XXXVIII Rule 6, and was accordingly not appealable, an order, not coming under Order XXXVlII, Rule 6, though passed on an application under Order XXXVIII, Rule 5 not being appealable under the relevant provision, namely, Order XLIII, Rule 1(g), of the Code.