Goldsmith an artisan a machinery if tools.

This Revision Petition raises the quertion whether the tools of a goldsmith are exempt from attachment under section 60 (1) (b), Civil Procedure Code. Section 60, in enumerating what properties are liable to attachment and sale in execution of decrees, mentions under the Proviso to it various classes of properties which are not liable to attachment. I am concerned here with clause (b) of section 60 (1) which reads thus:

“ tools of artisans, and where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seed grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section.”

The petitioner filed a suit in the Court of the District Munsif, Tirunelveli, against the respondent on a money claim and applied under Order 38, rule 5 for attachment before judgment of certain movable properties and tools of the respondent, and, an ad interim attachment of these properties was ordered when notice was issued to the respondent to show cause why he should not furnish secuxity as required in rule 5 of Order 38. Accordingly four items of movable properties were attached of which one happened to be a wall clock and the rest were tools used by the respondent in his craft. When the respondent appeared, he filed a counter-statement showing cause against his being called upon to furnish security for the suit claim. He also made a prayer in the counter-statement requesting the Court to release the properties from interim attachment already effected. On this, the District Munsif passed an order holding that the articles attached were not tools of an artisan and were not exempt from attachment. Against this order an appeal was taken to the District Judge of Tirunelveli who took a different view and set aside the attachment in regard to three items which he held were exempt from attachment under section 60, Civil Procedure Code being tools of an artisan. Against that order of the District Judge, the present Revision Petition is filed.

Two points are raised by Mr. Ratnam, counsel for the petitioner. The first is that the appeal itself was incompetent as to purported to be an appeal against an order from which no appeal is provided. The second point taken is, a goldsmith is not an artisan and the machines in question which have been attached do not fall within the category of tools and consequently the attachment was valid.

Order 43, rule 1 (q) provides for an appeal against orders passed under rules 2, 3 or 6 of Order 38. It is contended that the order in question does not fall under rule 6 of Order 38, but really falls under rule 5 of that Order. The order that could be passed by the Court under rule 5 if in the nature of a preliminary order and this should be followed by a final order under rule 6 of Order 38. Rule 6 consists of two clauses, (1) and (2). Clause (1) provides for the order to be passed by the Court after the defendant fails to show cause why he should not furnish security, or fails to furnish the security required within the time fixed by the Court, and the Court orders attachment of the property. This would apply to a case where the plaintiff succeeds in an application for attachment before judgment. Clause (2) provides for a case where the defendant succeeds by showing cause to the satisfaction of the Court why security should not be required. But, in cases where the defendant succeeds and the application for attachment before judgment taken out by the plaintiff is dismissed under rule 6(2), it is contended, an appeal would only lie where interim attachment had been effected under rule 5. The scope of Order 38, rule 6(2) has been the subject of judicial decisions in the High Court of Calcutta, Patna, Allahabad and Bombay, and, the view taken seems to be that in cases where the