CHENNAKESAV REDDI, J.

( 1 ) THIS Civil Miscellaneous Appeal preferred under O. 43, R. 1 (q), C. P. C. raises a question of its maintainability. The question is whether an order dismissing an application under O 38, R. 5, C. P. C. for an order of attachment before judgment is appealable.

( 2 ) THE facts are short and simple. The Union Bank of India, Visakhapatnam, is the plaintiff in the suit. The suit is one for recovery of money. The Plaintiff filed an application under O. 38, R. 5, C. P. C. for attachment of a sum of Rupees three lakhs lying with the Director General, Naval Project, Visakhapatnam, payable to the I defendant, before judgment. It was alleged on behalf of the plaintiff that unless attachment before judgment was ordered, the plaintiff-Balk would be put to serious loss and injury. Notice was ordered, to the defendants on the said application. No conditional attachment order was passed under sub-rule (3) of O. 38, R. 5, C. P. C. The defendants appeared and resisted the application contending that the property mortgaged in favour of the plaintiff-Bank was sufficient for the amount of the decree which may ultimately be found to be due in the suit by the defendants. The learned Subordinate Judge dismissed the application holding that it was not provided by the plaintiff-Bank that the value of 3,000 Sq. yards of house site which is hypothecated by the 2nd defendant in favour of the plaintiff-Bank was not sufficient to cover the suit amount and costs in the event of there being a decree against the defendants. Aggrieved against the said order dismissing the application, the plaintiff has preferred this appeal under O. 43, R. 1 (q), C. P. C.

( 3 ) THE learned counsel for the respondent-I defendant has taken an objection relating to the maintainability of the appeal. He submits that no appeal is provided for under O. 43, R. 1, C. P. C. against an order dismissing an application under O. 38, R. 5, C. P. C. Such an order, according to the learned counsel, cannot be deemed to be one under R. 6 which alone is made appealable under O. 43, R. 1 (q), C. P. C. Let us, therefore, peep into the provisions of Rr. 5 and 6 of O. 38,c. P. C.

( 4 ) "rule 5. Where defendant may be called upon to furnish security for production of property: (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or other wise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,- (a) is about to dispose of the whole or any part of his property, or (b) is about the remove the whole or any part of his property from the local limits of the jurisdiction of the Court the Court may direct the defendant, within a time to be fixed by it, either 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 sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. R. 6. Attachment where cause not shown or security not furnished: (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 there of as appears sufficient to satisfy my 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 other order as it thinks fit. "

( 5 ) THE dominant object of R. 5 is to prevent the decree that may be passed against the defendant from being rendered unfruitful. The provisions of R. 5 can only be invoked when the Court is satisfied at any stage of the suit that the defendant has done or is about to do any act with intent to obstruct or delay execution of any d

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