Complete exemption from attachment before judgment of all agricultural produce in the possession of an agriculturist under Order XXXVIII, R.12.

1. The respondent in I.A. No 4754 of 1961 on the file of the court of the Additional Munsiff, Vaikom is the Civil Revision petitioner. The respondents before me filed O.S. No. 106 of 1961 for recovery of 1024 standard paras of paddy and 631/2 bundles of hay in kind or their value in money. They also filed I. A. No 4754 of 1961 for attachment before judgment of a quantity of paddy in the possession of the Civil Revision Petitioner. The lower court directed interim attachment and after hearing parties ordered the release of 400 paras of paddy to the plaintiffs. The lower court also directed that if the petitioner-defendant so desired, he could pay the value of the paddy at nirak rate and get the paddy released from attachment. It further directed the petitioner to file a statement showing the actual quantity of paddy required for cultivation purposes and also for the maintenance of himself, his wife and his minor dependents, observing that appropriate orders would be passed on that statement on hearing both sides. The revision petition is directed against the aforesaid order.

2. The learned counsel of the respondents has raised a preliminary objection to the maintainability of the Civil Revision Petition. He argues that the order sought to be revised is one under O. XXXVIII, R..6 and therefore, appealable under Order XLIII, R.1 [q] to the appropriate court as laid down in S.106 and not to this Court. Therefore, according to him, this revision petition is incompetent. The learned advocate of the petitioner meets this contention saying that the order does not clearly appear to be one under Order XXXVIII R.6 but can very well be construed as one under Order XXXVIII R.6. He argues further that in such cases of doubt the benefit of the doubt should be given to the petitioner and the Civil Revision Petition should be allowed to be proceeded with. In support of this argument he invites my attention to a Division Bench ruling of the Calcutta High Court in Sourendra Nath Mitra v. Sreemati Tarubala Dasi [AIR. 1927 Cal. 354], wherein it was held that, if on a question which related to the competency of an appeal on aground, such as that the order appealed against was not one under R.6, a reasonable doubt arose, the benefit of that doubt should go to the appellant. In that case the preliminary objection raised was that the order under appeal was not one passed under R.2 or 3 or 6 of Order XXXVIII and therefore not appealable and Mukerji, J., speaking for the court, made the aforesaid observation holding that the appeal was competent as there was a reasonable doubt regarding the competency or otherwise of the appeal and in such cases the benefit of such doubt should be given to the appellant. In the present case, from the wording of the order, it is not quite clear whether the order would fall under R.5 or R.6 of Order XXXVIII and therefore, I am inclined to adopt the reasoning of Mukerji, J. in the Calcutta decision and hold that, in the circumstances of the case and to meet the ends of justice, the Civil Revision Petition should be allowed to be proceeded with.

3. There is yet another way of locking at the question. S.115 of the Code lays down that the High Court may call for the record of any case, decided by a subordinate court, in which no appeal lies to the High Court, so that the provision for an appeal, to another subordinate court, as in the present case does not oust the High Court's power of revision under this section. This view, I find, has been expressed by Raman Nayar, J. also in K. Martha Nicholas v. Yesamma [1961 KLT. 927].

4. The learned advocate of the respondents then contends that even if the order falls under O. XXXVIII, R.5, even then the order is not without jurisdiction, but only irregular and therefore not liable to be vacated under S.115 of the Code of Civil Procedure. He contends that the jurisdiction to attach is derived from S.94 of the Code and the failure to follow the procedure laid down by O. XXXVII