TIMBER PVT LTD Vs. BALDEV RAJ

JUDGEMENT

(1.) IN this letters Patent Appeal a preliminary objection has been taken that the appeal is not maintainable as the order under appeal is neither appealable under Order 43 of the Code of Civil Procedure nor does it tantamount to a judgment within the meaning of Clause 12 of the Letter Patent.

(2.) A civil suit for the recovery of Rs.31,125.00 is pending in the High Court on its original side. The suit has been brought by Respondent No. 1 against the appellant and respondent Nos. 2 and 3. On January 18,1973 respondent No. 1 moved an application under Order 38 Rule 5 of the Code of Civil Procedure for attachment before judgment of the timber belonging to the appellant to the extent of the suit amount. This application was allowed by the court after hearing the Parties vide its order dated Sept. 10,1973. It is this order which has been assailed in this appeal.

(3.) IT cannot be disputed that no appeal has been provided under Order 43 of the Code of Civil Procedure against an order of attachment before judgment, which a court is empowered to pass under the provisions of order 38 Rule 5 of the Code of Civil Procedure. The only question which, therefore, remains to be decided is whether an order under Order 38 Rule 5 of the Code of Civil procedure is a judgment so as to attract the provisions of Clause 12 of the letters Patent ? To show that such an order does not tantamount to a judgment, Mr. J. L. Sehgal, the learned counsel for respondent No. 1 has placed reliance upon two judgments viz. Asrumati Debi Versus Kumar Rupendra Deb Raikot and others, AIR 1953 S.C. 198, and Mengha Singh Vs. Sucha Singh, AIR 1925 Rangoon 267.