OM PRAKASH Vs. MOHAMMAD ISHAQ

JUDGEMENT

(1.) Om Prasad and others, have preferred an appeal from an order passed by the learned Subordinate Judge of Meerut refusing to allow attachment before judgment. They have also applied in revision in view of the contingency that the appeal be held to be incompetent. Om Prasad and others obtained a decree for sale under Order 34, Rules 4 and 5, Civil P.C. The proceedings for sale of the mortgaged property were pending in the lower Court when they made an application under Order 38, Rule 5, Civil P.C., for attachment before judgment, on the allegation that the sale proceeds were likely to prove insufficient for the satisfaction of the mortgage-money and that a deficit of Rs. 38,000 was likely to occur. As the mortgaged property had not been sold, no application under Order 34, Rule 6, Civil P.C., was made before the application for attachment, before judgment, already referred to. The decree-holders filed an affidavit in support of their application to the effect that the judgment-debtor was about to dispose of a substantial part, if not the whole, of his other property. The learned Subordinate Judge directed the mortgagor either to furnish security or to show cause why an order for attachment before judgment should not be passed. It is material to mention that the Court did not direct conditional attachment in terms of Order 38, Rule 5(3). On the date fixed for hearing the mortgagor showed cause. One of the grounds urged by him was that attachment before judgment could not be ordered before an application for a decree over under Order 34, Rule 6, Civil P.C, was made. Some other objections were put forward, but it is not necessary to mention them for the purposes of the appeal and the revision before us. After hearing the mortgagees and the mortgagor on the question whether attachment before judgment should be ordered the learned Subordinate Judge passed the following order: Let the mortgaged property be sold first. The application under Order 38, Rule 5 is premature.

(2.) We. may note in passing that the order of the learned Subordinate Judge is extremely meagre. It does not expressly reject the mortgagee's application for attachment before judgment, though there is no doubt that he meant to do so. It is not clear from the aforesaid order as to whether the learned Judge acted under Rule 5 or Rule 6, Order 38, Civil P.C. This is of importance in view of the preliminary objection taken on behalf of the respondents that no appeal lies from the order in question.

(3.) Under Order 43(1)(q), Civil P.C., no appeal lies except from an order passed under Rules 2, 3 and 6 of Order 38. Rules 2 and 3 admittedly have no application. If the order is substantially one under Rule 6, the appeal before us is competent, otherwise it is not. After carefully examining the provisions of Rules 5 and 6 with reference to the order in question we are of opinion that it cannot be deemed to be one under Rule 6. Rule 5 empowers the Court, in certain circumstances, to direct the defendant either to furnish security or to show cause why he should not furnish security. It also empowers the Court to direct conditional attachment of the whole or any portion of the property specified in the application for attachment before judgment. Rule 6 runs as follows: (1) Where, the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached; (2) where the defendant shows such cause or furnishes the required security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such order as it thinks fit.