HELAL AHMAD Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) Although the appellant had earlier filed Civil Revision No. 1831 of 2005. but due to stamp report dated 19.9.2005, said Civil Revision was converted into a miscellaneous appeal, namely, the instant M.A. No. 412 of 2005.

(2.) The order dated 2.09.2005, which is under challenge passed by learned Subordinate Judge-Ill, Aurangabad. in Mortgage Suit No. 139 of 2003 (157 of 2003), is an order, by which the plaintiff's (respondent no. 1) petition dated 19.1.2005, for directing the defendants to furnish security for the suit amount, failing which, to issue order for attachment before judgment in respect of the entire properties was allowed and the plaintiff was directed to take necessary step for attachment or for proper security. It may be noted that by the said order no direction of attachment of the property had been passed and such an order can be passed only when proper security was not deposited, which situation had not yet arisen at the time of passing of the said order.

(3.) Order XLIII, Rule 1(a) of the Code of Civil Procedure (hereinafter referred to as 'the Code' for the sake of brevity) specially provided that a miscellaneous appeal can be filed only against an order under Rules 2, 3 or 6 of Order XXXVIII of the Code. Admittedly, provisions of Rules 2 and 3 of the said Order are not applicable to the instant appeal, whereas, Rule 6 is with respect to attachment of the property, where either cause has not been shown or security has not been furnished.