1. This appeal has been preferred against the order in I.A. No. 1858 of 2002 in O.S.No.180 of 2002 on the file of the Additional Sub Court, Thalassery.

2. I.A. No. 1858 of 2002 was a petition filed under 0.38 R.5 read with S.151 of the Code of Civil Procedure and I.A. No.395 of 2003 was a petition filed under S.151 of the Code to receive additional affidavit in support of I.A. No. 1858 of 2002. Both the applications were preferred by the plaintiff who instituted the suit for realisation of an amount of Rs. 5,90,000/- alleged to the due from the defendant. Plaintiff-petitioner apprehended that the defendant would deal with his properties unless an order of attachment is made before judgment. The Court below found no merit in the contentions raised by the petitioner and dismissed the applications. Before dismissing the applications opportunity was given to the defendant to file his counter affidavit. It is after considering the objections raised by the defendant that the petitions were dismissed against which the present appeal was preferred.

3. Registry of this Court raised objection stating that the order challenged is an order under O.38 R.5 of the C.P.C. and consequently appeal is not maintainable and the appeal memorandum was returned. Counsel for the appellant made the following reply:

"The appeal is filed against an order passed under 0.38 R. 6 C.P.C. Hence appeal under 0.48 R.1(q) is maintainable in the case".

The Registry has taken the view that the proper remedy of the appellant is to file a regular appeal and not F.A.O.Request was made to post the matter before Bench.

4. Counsel appearing for the appellant submitted that appeal is perfectly maintainable since order has been passed under 0.38 R. 6 of the Code of Civil Procedure. Consequently appeal is maintainable under 0.43, R. 1(q). We find it difficult to accept the contention of the counsel. Appellant had filed petition for attachment under 0.38 R.5 C.P.C., which reads as follows for easy reference.

5. Where defendant may be called upon to furnish security for production of property.- (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,?

(a) is about to dispose of the whole or any part of the property, or

(b) 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, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said opportunity 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.

(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.

(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.

(4) If an order of attachment is made without complying with the provisions of sub-r. (1) of this rule, such attachment shall be void.

Under O.38 R.5 Court is free to give direction to 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. Under 0.38 R.5(3) the Court may also in the order direct the conditional attachment of the whole or any portion of the property specified for attachment. Defendant respondent in this case filed counter statement stating that there is no idea to sell the property since it is mortgaged to Union Bank of India. The Court below found no merits in the petition, consequently the same was dismissed. Counsel appearing for the ap