MAHENDRA NARAIN SAHA Vs. GURUDAS BAIRAGI

JUDGEMENT

(1.) This appeal is directed against an order, whereby the Subordinate Judge has in substance dismissed an application for attachment before judgment. The respondents have taken a preliminary, objection to the competency of the appeal.

(2.) The appellants contend that the order must be deemed to have been made under Rule 6 of Order XXXVIII of the Code of Civil Procedure, and is, consequently, open to appeal under Rule 1, Clause (q), of Order XLIII of the Code. The respondents, on the other hand, urge that the order could not possibly have been made under Rule 6, that it was probably made under Rule 5, and that, treated as an order under Rule 5, it is not liable to be challenged fay way of appeal.

(3.) To explain the relative situations of the parties, it is necessary to recapitulate briefly the course of events in the Court below. The suit was instituted on the 24th March 1915. On the 3rd May 1915, the plaintiffs made an application for attachment before judgment under Rule 5 of Order XXXVIII of the Code. Thereupon, the Court directed the issue of notice upon the defendants to show cause why an attachment should not issue before judgment, and at the same time directed the defendants not to part with the properties in any way. It is plain that this was not in strict accordance with the provisions of the Code, which were overlooked by the Court and the legal advisers of the parties. The order to be made in such circumstances will be found in Form No. 5 of Appendix F to the Code of Civil Procedure. That form plainly indicates that in a proceeding under Rule 5, where the Court is satisfied by affidavit or otherwise that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct one of two things to be done, namely, either (a) to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same or such portion thereof as may be sufficient to satisfy the decree, or (b) to appear and show cause why he should not furnish security. The Court may also in the order direct a conditional attachment of the whole or any portion of the property required to be attached.