The proper remedy for the defendant-appellant was to file a Civil Revision.

1. Although the appellant had earlier filed Civil Revision No. 1831 of 2005. but due to stamp report dated 19.9.2005, said Civil Revision was converted into a miscellaneous appeal, namely, the instant M.A. No. 412 of 2005.

2. The order dated 2.09.2005, which is under challenge passed by learned Subordinate Judge-Ill, Aurangabad. in Mortgage Suit No. 139 of 2003 (157 of 2003), is an order, by which the plaintiffs (respondent no. 1) petition dated 19.1.2005, for directing the defendants to furnish security for the suit amount, failing which, to issue order for attachment before judgment in respect of the entire properties was allowed and the plaintiff was directed to take necessary step for attachment or for proper security. It may be noted that by the said order no direction of attachment of the property had been passed and such an order can be passed only when proper security was not deposited, which situation had not yet arisen at the time of passing of the said order.

3. Order XLIII, Rule 1(a) of the Code of Civil Procedure (hereinafter referred to as the Code for the sake of brevity) specially provided that a miscellaneous appeal can be filed only against an order under Rules 2, 3 or 6 of Order XXXVIII of the Code. Admittedly, provisions of Rules 2 and 3 of the said Order are not applicable to the instant appeal, whereas, Rule 6 is with respect to attachment of the property, where either cause has not been shown or security has not been furnished.

4. From the impugned order, it appears that it was not a case where cause was not shown and it was also not a case where security was not furnished on the orders of the Court at the time of passing of the said order. The only direction in the said order was that the plaintiff should take necessary steps for attachment or for proper security. Neither the question of attachment nor question of deposit of security had arisen at the said point of time as attachment order could be passed only when proper security was not deposited by the concerned party on the specific order of the court in that regard, but in the instant case no order of attachment was passed by the learned court even by the impugned order.

5. In the said circumstances, the impugned order is clearly not an order under the provision of Rule 6 of Order XXVIII of the Code, hence the miscellaneous appeal was not maintainable and the proper remedy for the defendant-appellant was to file a Civil Revision in this Court against the said order.

6. In that view of the matter, the stamp report dated 19.9.2005 regarding maintainability of the miscellaneous appeal and the conversion of the Civil Revision into the instant miscellaneous appeal by the petitioner/appellant was not correct. Learned counsel for the petitioner/ appellant is directed to reconvert this miscellaneous appeal into a Civil Revision by 1.6.2007.