An order refusing attachment before judgment is appealable only if preceded by a conditional attachment under Rule 5(3) of Order 38 CPC.

A.M. BHATTACHARJEE, J. :- During the hearing of this revision against an order dismissing an application for attachment before judgement under the provisions of Order 38, Rule 5 of the Code of Civil Procedure, a question arose as to whether the impugned order is appealable under the Code. An appeal and a revision, being mutually exclusive, cannot co-exist and a revision cannot lie to this Court where an appeal lies to this Court or to any Court subordinate to this Court, as has now been made expressly clear by Sub-Section (2) of Section 115, inserted by the Amendment Act of 1976.

2. In this case, on an application being made by the plaintiff under Order 38, Rule 5 for attachment before judgement, the trial Court directed the plaintiff to show cause why he should not furnish security, but no conditional order of attachment was made under sub-rule (3) of Rule 5. And on the defendant showing cause and after hearing the parties, the trial Judge has dismissed this application. Is such an order refusing attachment before judgement appealable ? It would be so only if the same can be regarded to have been passed under Rule 6 of Order 38, that being the only Rule, orders whereunder relating to attachment before judgement have been made appealable under Order 43, Rule 1(q). Rule 6 reads thus :-

"6.(1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required...., the Court may order that the properties specified, or such portion thereof as appears sufficient to satisfy any 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security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit."

3. Under Rule 6(1), therefore, any order. directing attachment before judgement is appealable, whether or not there has been a prior conditional attachment under Rule 5(3). But an order refusing attachment would be appealable under Rule 6(2), only if there was a prior conditional attachment under Rule 5(3), as would appear from the words "and the property specified.....has been attached" in that sub-rule. An order refusing attachment before judgement, in order to come within Rule 6(2), must be preceded by an order of conditional attachment under Rule 5(3), and if not so preceded, would not be appealable under Order 43, Rule 1(q). The rationale behind these provisions appear to be this.

4. Attachment before judgement is a harsh remedy and since attachment of a defendants property before his liability has been established at the trial may seriously embarrass and prejudice the defendant, a Court ought not to grant it unless it cannot but. It was, therefore, thought that after such an order is passed by the trial Court, the defendant ought to have the right to assail that order, on facts as well as law, in a regular appeal before an appellate Court. But once the trial Court on a consideration of the show cause made by the defendant and other materials on record has declined a pre-trial attachment on finding no case therefor, the defendant ought not to be made liable to face a reconsideration and reassessment of the entire matter, on facts as well as law, by a Court of appeal during the trial of the suit and should be allowed to conduct his defence freely without any financial embarrassment or proprietary handicap. Where however, the trial Court, even though it has finally refused attachment after show cause by the defendant under Rule 6(2), nevertheless initially directed an ad interim conditional attachment, on the materials then on record, it was thought that in such a case the plaintiff having once made out a case to the satisfaction of the trial Court for conditional attachment, should be allowed one further opportunity to agitate the matter before the appellate Court.

5. But if that be the reason then one may find