Point of Law: Conditional attachment Order -An order dismissing an application under O.38, Rule 5 is not appealable - Matter squarely falls under Order XXXVIII, Rule 6 of CPC and the Order of the Trial Court is appealable.

ORDER :

The present Revision Petition has been preferred aggrieved by the Orders dated 28.10.2021 in I.A.No.117 of 2021 in O.S.No.198 of 2021 on the file of the Court of the VI Additional Senior Civil Judge, Visakhapatnam, Visakhapatnam District.

2. Heard Mr.Venkateswara Rao Gudapati, learned counsel for the petitioner and Mr.T.D.Phani Kumar, learned counsel for the respondents.

3. The petitioner herein is the defendant in the above referred suit filed by the respondents/plaintiffs seeking recovery of an amount of Rs.43,91,880/- from him. In the said suit, the respondents/plaintiffs filed an application in I.A.No.117 of 2021 under Order XXXVIII, Rule 5 of the Code of Civil Procedure (hereinafter called as “CPC”) seeking a direction to the petitioner/defendant to furnish security for the suit amount within the time fixed by the Court, failing which to order conditional attachment of the petition schedule property before Judgment. The petitioner/defendant resisted the said application by filing a detailed counter. The learned Trial Judge after referring to the contentions advanced on behalf of the respective parties and after noting that the direction of the Court dated 07.07.2021 to the petitioner/defendant to furnish security for the suit amount or to show cause why the attachment should not be made within 72 hours from the time of receipt of the Order was not complied with and failed to furnish any security to the suit amount, passed an Order dated 28.10.2021 allowing the attachment in respect of item No.2 of the petition schedule property before Judgment, while setting aside the ad interim attachment Order dated 07.07.2021, in respect of item No.1 of the petition schedule property is concerned. Aggrieved by the said Order, the present Revision came to be filed.

4. Though the learned counsel for the petitioner advanced several contentions, as an issue with regard to maintainability of the Revision Petition was raised, it is deemed appropriate to examine the same instead of delving into the merits of the case. In this regard, it is the contention of the learned counsel for the petitioner that the impugned Order was passed under Order XXXVIII, Rule 5 of CPC and as there is no provision for filing appeal against the said Order, the present Revision is filed and the same is maintainable. Drawing the attention of this Court to the relevant provisions, the learned counsel would submit that Order 43, Rule 1(q) of CPC provides for appeals against an Order passed under Rules 2 and 3 of CPC or Rule 6 of Order XXXVIII of CPC and in the absence of specific provision providing for appeal against an Order under Order XXXVIII, Rule 5 of CPC, the only remedy available to the petitioner is to file a Revision Petition invoking the powers of this Court under Article 227 of the Constitution of India.

5. The learned counsel without prejudice to the said contention would also submit that even otherwise also the Order under challenge is not sustainable, in as much as, the learned Trial Judge without assigning any reasons, much less, plausible reasons committed material irregularity in coming to the conclusion that the respondents/plaintiffs have categorically established that the petitioner/defendant is about to dispose of item No.2 of the petition schedule property. The learned counsel accordingly submits that the Order under challenge is liable to be set aside and the matter deserves to be remanded back for consideration and passing Orders afresh, in accordance with Law.

6. The learned counsel for the respondents on the other hand submitted that the Order under challenge was passed by the learned Trial Judge, as the petitioner/defendant failed to comply with the direction dated 07.07.2021. He submits that Order XXXVIII, Rule 6 of CPC empowers the learned Trial Court to pass an order of attachment, as the petitioner/defendant failed to avail the opportunity provided to him, in terms of Order XXXVIII, Rule 5(1)(b) of CPC. While submitting that merely bec