IMPORTANT POINT
An appeal against an order dismissing an application for attachment is not maintainable if no attachment order was issued.

JUDGMENT :

G BASAVARAJA, J.

Order on maintainability of the appeal:

1. This is plaintiff's appeal against the order passed on IA.2 filed under Order XXXVIII Rule 5 read with Section 151 of the Code of Civil Procedure in OS No.237 of 2023 on the file of District and Sessions Judge (Commercial Court-86), Bengaluru (for short hereinafter referred to as the "trial Court").

2. For the sake of convenience, the parties herein are referred to with their status and rank before the trial Court.

3. Brief relevant facts leading to filing of this appeal are that the appellant/plaintiff instituted Com. OS No.237 of 2023 against the respondent before the trial Court for recovery of money of Rs.8,04,59,495/- with interest at the rate of 12% per annum from the date of filing the suit till its realisation. Along with the suit, the plaintiff had filed an Interlocutory Application under Order XXXVIII Rule 5 read with Section 151 of Code of Civil Procedure, 1908 praying for direction to the respondent to deposit or furnish sufficient security for a sum of Rs.8,04,59,495/- with interest at the rate of 12% per annum, so as to completely satisfy the main relief, failing which, to pass an order of attachment before the judgment attaching the properties of the defendants as described in the schedule property to the application, in favour of the plaintiff.

4. The trial Court granted exparte order on 20th February, 2023 by creating charge over the suit schedule property till the next date of hearing.

5. In response to the summons, the respondent appeared before the trial Court and filed his written statement and also filed statement of objections to the application. Having heard the arguments on both sides, the trial Court dismissed IA.2 filed by the plaintiff under Order XXXVIII Rule 5 of Code of Civil Procedure. Being aggrieved by the said order, the plaintiff/appellant has preferred this appeal under Section 13(1A) of the Commercial Courts Act, 2015 read with Order XLIII Rule 1(r) of Code of Civil Procedure, 1908. Statement of Objections is also filed on behalf of the Respondents.

6. Sri P.K. Shrikara along with Sri Aniketh B.C., learned counsel appearing for the appellant/plaintiff submitted that the order impugned is arbitrary, capricious, unreasonable and suffers from non-application of mind and cannot be sustained. It is submitted that the trial Court has not exercised its jurisdiction in a reasonable and judicious manner. He has also reiterated the averments made in the memorandum of appeal and submitted that the trial Court has committed an error in dismissing IA.2. Further, he would submit that since the trial Court has dismissed IA.2 filed under Order XXXVIII Rule 6, the appeal lies under Order XLIII Rule 1(q) of Code of Civil Procedure, 1908. On all these grounds, he sought to allow the appeal.

7. As against this, learned counsel appearing for respondents submitted that appellant/plaintiff had filed an application under Order XXXVIII Rule 5 of Code of Civil Procedure to attach the schedule property. The trial Court has not passed any attachment order as required under Rule XXXVIII Rule 5 of Code of Civil Procedure, 1908 and it is only after filing statement of objections by the defendants, the trial court has rightly rejected the application. The trial Court has also not passed any order under Order XXXVIII Rule 6 of Code of Civil Procedure. Hence, the order impugned is not appealable under Order XLIII Rule 1(q) of Code of Civil Procedure. Since the appeal is not maintainable as against the order impugned, the question of considering the merit/demerit of the order impugned does not arise by this Court. The learned Counsel would further submit that the Court has not issued the attachment order in Form 5 and 6 of Code of Civil Procedure, 1908 and hence the appeal filed under Order XLIII Rule 1(q) is not maintainable. On all these grounds sought to dismiss the appeal. He has also placed reliance on the following judgments:

1. PALGHAR ROLLING MILLS (P) LTD