The court may direct the defendant to furnish security under O.38 R.5 of the Code of Civil Procedure if satisfied that the defendant, with intent to obstruct or delay the execution of any decree, is about to dispose of the whole or part of his property or is about to remove the whole or any part of his property from the local limits of the court's jurisdiction.

1. The defendant in O. S. No. 771/95 on the file of the Second Additional Sub Judge, Thrissur has preferred this Revision Petition against the order dated 2nd November 1995 in I. A. 2834/95, arising out of the said suit, wherein he has been directed to furnish security for the suit amount on or before 15th December 1995 or to show cause why he should not furnish security for the same. Operation of the direction of the Sub Judge was stayed by this Court.

2. The respondent herein, who is the plaintiff in the suit prayed for attachment of the property of the petitioner under O.38 R.5 of the Code of Civil Procedure. His main contention is that the petitioner is going to retire shortly from service and it will be difficult for him (the plaintiff) to realise the amount of damage claimed in this suit. Accordingly the plaintiff prayed that the salary, gratuity and the car belonging to the petitioner should be attached.

3. Learned counsel for the petitioner contended that the order passed by the Sub Judge is without jurisdiction and as such it should be quashed.

4. A preliminary objection was raised by the learned counsel for the respondent plaintiff by submitting that the impugned order being an appealable one under O.43 R.1 C. P. C. the Revision Petition is not maintainable. This preliminary objection is ruled out inasmuch as under O.43 R.1 clause (q), appealable orders are only those orders which are passed under R.2, 3 and 6 of O.38 C. P. C. R.2 of O.38 contemplates that if the defendant fails to show cause as to why he shall not be directed to furnish security to enter his appearance when called upon during the pendency of the suit, an order shall be passed to furnish security. R.3 contemplates that a court may discharge the surety who has undertaken the obligation to cause appearance of the defendants. R.6 contemplates that where the defendant fails to show cause why he should not furnish security or fails to furnish security required, within the time fixed by the Court, then the court may order for attachment of the property of the defendant. There is no contention by the respondent that the petitioner herein has been avoiding appearance in the court or has avoided any process of the court with intent to obstruct or delay the execution of any decree. Respondent has no case under R.3 of O.38. From the impugned order it appears that no order of attachment of his property under R.6 of O.38 has been passed in as much as there is no case that the petitioner has failed to furnish security as directed or to show cause why he should not be directed to furnish security. Hence the only Rule that is applicable to this case is R.5 of O.38 C. P. C. Under O.43 R.1 an order passed under O.38 R.5 C. P .C. is not made appealable. The only course open is to file a Revision. Hence in my opinion the Revision is maintainable.

5. Coming to the merits of the case, it is found that the order on the face of it appears to be one without jurisdiction. O.38 R.5 contemplates that where at any stage of the suit, the court is satisfied, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him is about to dispose of the whole or part of his property, or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the court may direct the defendant either to furnish security or to produce and place at the disposal of the Court the said property or the value of the same or such portion thereof as may be sufficient to satisfy the decree or to appear and show cause why he should not furnish security. Further it is laid down that the plaintiff shall specify the property required to be attached and the estimated value thereof.

6. It is not averred in the petition filed by the respondent under O.38 R.5 of the C. P. C. that the defendant petitioner has any intention to dispose of the whole or any part of his property or to remove the whole or any part of his prop