F. X. RABELLO Vs. FIRM LADHASINGH BEDI

JUDGEMENT

(1.) THIS is an appeal from a decision of the Second Subordinate Judge, First Class, Nagpur, refusing attachment before judgment. The lower Court had issued notice to the opposite party to show cause under Order 38, Rule 5, Civil P.C., but had not made any order of conditional attachment. After hearing the parties the lower Court came to the conclusion that no action was necessary. It is argued before us that the decision made by the lower Court is under Order 38, Rule 6(2) and thus appealable under Order 43, Rule 1(q). Order 38, Rule 6(2) is as follows: 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security and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit. From the wording of this Sub-rule it clearly appears that no order of attachment should be withdrawn and no such other order as the Court thinks fit can be made under this Sub-rule unless the property has already been attached. This was considered in Kedarnath v. Tejpal A.I.R. 1935 Pat. 219 with which decision we are in agreement. Consequently we hold that no appeal lies. It was suggested in the argument that the case was fixed for other side to show cause why security should not be furnished but on a perusal of the order sheet of the case we find that this appeal was admitted for hearing. It is urged that we should at least treat this appeal as a revisional application but the matter is one of the Court's discretion and after this lapse of time we are not prepared to entertain it as a revision. The appeal is dismissed on the ground that it does not lie with costs. Counsel's fee Rs. 15.