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1927 Supreme(Lah) 167
Lahore High Court
Zafar Ali, J.
S Jai Dev Singh - Appellant
Versus
S Jai Singh & Anr. - Respondent
Decided On : 18-11-1927
JUDGMENT
Zafar Ali, J. - This is a miscellaneous first appeal against the order for attachment before judgment made by the Senior Subordinate Judge of Rawalpindi. The order runs thus:
.... under the circumstances I think that it is necessary to attach the kothi before judgment under Order 38, Rule 5, Civil P.C., and I order it accordingly.
2. Now, an order under the said Rule 5 is not appealable while Order 43, Rule 1(q), Civil P.C., gives the right of appeal against an order under Rule 6. In the present case, however, though the learned Senior Subordinate Judge purports to have acted under Rule 5, that rule has no application. That rule contains three clauses and the Court while calling upon the defendant to furnish security etc., under Clause (1) may also order conditional attachment of his property. The learned Senior Subordinate Judge having made an order under Clause (1) could make none under Clause (3).
3. Further under Clause (3)
the Court may also in the order [made under Cl.. (1)] direct the conditional attachment....
4. But the attachment ordered by the Senior Subordinate Judge was not conditional. An unconditional attachment can only be ordered under Rule 6 when the defendant fails to comply with an order made under Rule 5.
5. Counsel for the respondent concedes that the order is irregular but contends that it is not appealable. He further urges that it cannot be revised. He contends that the order should be amended by this Court and should hot be set aside. On the other hand, the counsel for the appellant argues that the order is irregular and illegal but all the same it is an order under Rule 6 because there is no other provision in the Civil Procedure Code empowering a Court to order attachment before judgment.
6. As unconditional attachment could be ordered under Rule 6 only and as the attachment was unconditional it may betaken that the order was under Rule 6 But it was irregular and illegal because the circumstances under which it could be made did not exist. I, therefore, accept the appeal and set aside the order with costs.
