SATISH CHANDRA BAISHYA Vs. PANNALAL JAIN

JUDGEMENT

(1.) THIS is an appeal directed against an Order passed by Shri N. Hazarika, Assistant District Judge, Gauhati, dated 14 -6 -1974, whereby in a proceeding under O. 38 of the Civil P.C. the learned Judge did not accept the security offered by the defendant and also made the conditional order of attachment before judgment absolute.

(2.) COUNSEL for the respondent has raised a preliminary objection as to the maintainability of the appeal. According to the counsel, the appeal should have been filed before the District Judge in view of the amendment made in the Bengal, Agra and Assam Civil Courts Act, by Assam Act 17 of 1974 (hereinafter to be referred as "the Amending Act"). According to the counsel though "the Amending Act" came into force on the 6th day of May. 1974, it is retrospective in operation and as such, the forum of the appeal, which is valued less than Rupees 15.000/ -, is and was at all relevant time, the Court of the District Judge, Gauhati.

(3.) HOWEVER , Shri B.N. Sarma, Counsel for the respondent has very rightly pointed out that determination of the question touches the merits of the appeal and the impugned order is a composite order of rejection of security and making the conditional order of attachment before judgment absolute. I find sufficient force in the contention and hold that in fact this is a composite order and the appeal has been preferred: against the said composite order passed on 14 -6 -1974. Accordingly, I hold that there is no scope of applicability of Article 227 of the Constitution.