HARIDAS HALDAR Vs. CHARU CHANDRA SIRCAR

JUDGEMENT

(1.) This is an appeal on behalf of the defendant and is directed against an order made on 8th August 1932 under Order 38, Rule 5, Civil P.C. for attachment before judgment of certain palas, or turns of worship, of the famous shrine of Goddess Kali at Kalighat. The Subordinate Judge has directed, notwithstanding the objection taken by the defendant that a pala is not attachable having regard to the provisions of Section 60, Civil P.C., that the pala should be attached and in order to make the attachment effective it is stated that he has appointed two receivers, one the defendant himself, and the other the son of the plaintiff. Against this order the present appeal has been brought.

(2.) Two preliminary objections have been raised on behalf of the respondent to the hearing of the appeal. It is argued that there is no appeal allowed by the Code because according to the provisions of Order 38, Rr. 5 and 6 an appeal could only lie on the points which are relevant. In other words, it is suggested that the appeal is restricted to grounds mentioned in Rr. 5 and 6 of the said Order. It is said that the question as to whether the properties sought to be attached are capable of attachment having regard to the provisions of Section 60 is not one of the questions which can he determined in an appeal which is provided for under Order 43 against orders directing attachment before judgment. We are of opinion that there is no substance in this contention; for, to take this view of the respondent would be to restrict the scope of the order and the rules. The rules assume that the property sought to be attached must be one, capable of being attached under the law. This objection must be overruled. The next ground put forward on behalf of the respondent is that this appeal has become infructuous as the decree has already been passed. But it would appear from the provisions of Order 38, Rule 11 of the Code that attachment continues to exist even after the passing of the decree. Order 38, E. 9 runs as follows: Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed.

(3.) Order 38, Rule 11 enacts: Where property is under attachment by virtue of the provisions of this order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property.