JUDGMENT

(Prayer:Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 06.03.2019 in I.A.No.431 of 2015 in O.S.No.301 of 2015 on the file of the Principal Sub Court, Pudukkottai.)

1. The present Civil Revision Petition has been filed by the petitioner under Article 227 of the Constitution of India, against the fair and decreetal order dated 06.03.2019 in I.A.No.431 of 2015 in O.S.No.301 of 2015 on the file of the Principal Sub Court, Pudukkottai.

2. The petitioner is the plaintiff and the respondent is the defendant before the Court below.

3. For the sake of convenience, the parties will be referred to as per the litigative status before the trial Court.

4. According to the plaint, the petitioner has filed the suit for recovery of a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with future interest. While the suit was pending, the plaintiff has filed an application for the attachment of the property before judgment.

5. The said application was resisted by the respondent, and after hearing both sides, the Court below has dismissed the application and rejected the prayer of the petitioner, vide order dated 06.03.2017. Aggrieved with the order, the petitioner has come before this Court by way of revision petition filed under Article 227 of the Constitution of India.

6. The learned counsel for the petitioner would submit that the very dismissal order in an application filed under Order XXXVIII Rule 5 of C.P.C, and that, the reason stated by the Court below is perverse. Hence, he prayed to allow this Civil Revision Petition.

7. However, the learned counsel for the respondent would submit that as per Order 43 Rule 1(q) of C.P.C, against the order passed under Order XXXVIII Rule 2 of C.P.C, the only remedy is to prefer a regular appeal as provided under Order 43 of C.P.C and not filing Civil Revision Petition. Hence, prayed to dismiss this petition.

8. For ready reference, Order XLIII Rule 1(q) of C.P.C is extracted hereunder:

“ORDER XLIII – APPEALS FROM ORDERS

1. An appeal shall lie from the following orders under the provisions of Section 104, namely:-

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(q) an order under Rule 2, Rule 3 or Rule 6 of Order XXXVIII;”

9. However, the learned counsel for the petitioner would submit that they filed an application only under Order XXXVIII Rule 5 of C.P.C, and not under Order XXXVIII Rule 2, 3 or 6 of C.P.C. Hence the same does not come under the provisions of Order XLIII Rule 1(q) of C.P.C, and they further relied upon the judgment of the Panjab-Hariyana High Court in Civil Revision No.2147 of 2013 (Gurdeep Singh Vs..M/s.Krishna Agricultural Steel) dated 21.01.2016, and submit that the very revision is maintainable.

10. No doubt, Order XLIII Rule 1(q) CPC do not speak about an order passed under Order XXXVIII Rule 5 of C.P.C., which only deals to furnish security. Whereas, in the petition, the petitioner sought for a prayer of attachment. Therefore, though the petitioner mentioned wrong provision in their petition as if Order XXXVIII Rule 5 of C.P.C, which will not militate the spirt of Order XLIII of C.P.C. Further on harmonious reading of the prayer sought for in the petition, it only comes under Order XXXVIII Rule 6 of C.P.C, as the petitioner ultimately sought for the relief of attachment.

11. Therefore, this Court is of the view that, as rightly submitted by the learned counsel for the respondent, the instant revision is not maintainable before this Court in view of Order XLIII Rule 1 (q) of C.P.C. The only available remedy to the petitioner is to prefer regular appeal. It is useful to refer to the judgment reported in 2022 (10) SCC 477 (Mohamed Ali Vs.V.Jaya and another) and paragraph Nos.17 to 19 are as follows:

“17. Even otherwise and as observed hereinabove, against the exparte judgment and decree, the remedy by way of an appeal before the First Appellate Court was available. Therefore, the High Court